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Speech of Mr. B A i .i ^ijt^^ 

- <; ■ 



Vn the bill received from the Senate^ entitled " yf i ^rtmKfrii.peal cer- 
fain acts refpecting the organization of the courts of the II, States J* 



De'iv^red in the House «if Representatives j Feb. 19, 1802, 



Mr. qAaVi 



[RMrVN. I muft be allowed to express my surprize 
|K^ the x;e-iiTse pursued by the honorable gentleman from Virginia (Mr. 
(S-i'ts) in the remarks \vhich he has made on the subjedt before us, I had 
expected it as well from chat sentiment of magnanimity which* ought to 
have been inspired by a sense of the high gromidhe held on the floor of 
this house, as from the professions of a defire to conciliate, which he 
has so repeatedly made dm-ing the session.— We have been invited ti> 
bury the hatchet, and brighten the chain of peace, We were disposed 
to meet on middle ground. — We bad as-surances from the gentlcm?n,tl)5£. 
he would abftiiin from lefleft'ons on the past, and tliat his only wish -^vas 
that -we might unite in future in piomoting the welfare of our common 
. country. We confided in the gentleman'^ sincerity, and cherished tL«» 
hope, that if the divisions of party w^re not banished from the house, 
its spirit would be rendered less intemperate. Such were our impressions, 
when the mask was suddenly thrown aside, and vve saw the torch of dis- 
cord lighted and blazing bcfors our eyes. Every effort has been made 
to revive the animosities of the house, and to inflame the palLons of the 
nation, lam at no loss to perceive why this course has betn pursued. 
The gentleman has l^etrn anwiliir.g to rely upon the lliength of his sobjedi , 
and iws therefore determined to make the m.easiire a party qu eft ion. He has 
probably insured nicces^is, but wou'd it not have been honorab e and moie 
commendable to have left the deo'sion of a gre<it constitutional queftioa 
trt the understanding and not the prejudices of the ho .se. It was my ar- 
dent wish to discuss ti!« subject with <aimness and deliberation, audi did 
intr-nd to aveid every topic which could awaken the sensibility of paity. 
This was my temper and design v^^hen I took my seat yelterdav. It is 
a course at present v.'e are no ionger at liberty to pursue. The gent'i.A 
man has wandered far, very far frum the point ot the debate, andoKS ex- 
tended his animadversions to all the prominent measin-es ci tiie former ac- 
. miniftratious.. In following him through his preiirainary observations, I 
necessarily loft sight of the biil upon your table. 

The gentleman commenced, his icri<3:ures with the philosophic obscr- 
■vaticn, th.nt it was the fate of mankind to hold ditfeient opinions as t^ 
the form of g-overument which was preferable. That some were^ajltackei 

' • ■ A 



C 2 ] ' N^ ■ 

to the monarchclal, while others thought the republican form the more 
eligible. This, as an abftraft remark, is certainly true, and could have 
not furnished ground of offence, if it had not evidently appeared that an 
allusion was designed to be made to the parties in this country. Does 
the gent eman suppose that we have a less lively recolleftion than himself 
of the oath which we have taken to support the conftitution ; that we 
are less sensible of the spirit of our government, or less devoted to the 
wishes of our conftituents ? Whatever impression it might be the inten- 
tion of the gentleman to make, he does not believe that theie exifts in. 
the country an anti-republican party. He will not venture to affert such 
an opinion on the floor of this house. That there may be a few individu- 
als having a preference for monarchy is not improbab'e ; but will the 
gentleman from Virginia, or any other gentleman affirm in this place, that 
there is a party in the country who wish to eftablish monarchy ? Insinu- 
ations of this sort belong not the legislature of the union. Their p'ace 
is an eleftion ground or an ale-house. Within these walls they are loft ; 
abroad, they have had an effeit, and I fear are ftill capable of abusing 
popular credulity. 

We were next told of the parties which have existed, divided by the 
opposite views of promoting executive power, and guarding the rights of 
the people. The gentleman did not tell us in plain language, but he 
wished it to be understood, that he and his friends were the guardians of 
the peoples' rights, and that we were the advocates of the executive 
power. 

I know that this is the diftinftion of party which some gentlemen have 
been anxious to eftablish ; but it is not the ground on which we divide. 
I am satisfied with the conftitutional powers of the executive, and never 
wished or attempted to encrease them ; and I do not believe that the gen- 
tlemen on the other side of the house ever had a serious apprehension of 
danger from an increase of executive authority. No, sir, our views as to 
the powers which do and ought to belong to the general and ftate govern- 
ments, are the true source of our divisions. I co-operated with the par- 
ty to which I am attached, because I believed that their true objeA and 
end is an honeft and eihcient support of the general government, and the 
exercise of the legitimate powers of the conftitution. 

I pray God I may be millaken in the opinion I entertain as to the 
designs of the gentlemen to whom I am opposed. Those designs I be- 
lieve hoftile to the powers of this government. State pride extinguishes 
a national sentiment. Whatever power is taken from this government 
is given to the ftates. 

The ruins of this government aggrandize the ftates. There are ftates 
which are too proud to be controUrd. Whose sense of greatness and re- 
source renders them indiflerent to our proted^ion, and induces a belief, 
that if no general government exifted, their influence would be more ex- 
tensive and their importance more conspicuous. There are gentlemen 
who make no secret of an extreme point of depression, to which the go- 
vernment is to be sunk. To that point we are rapidly progressing. But 
1 would beg gentlemen to remember, that human affairs are no t to be ar- 
rcfted in their course, at aftiilcial points. The impulse now given may 



C 3 ] 

Be accelerated by causes at present out of view. And when those who 
now design well, wish to flop j they may find their powers unable to reliil 
the torrent. It is not true that we ever wished to give a dangerous 
ftrength to executive power. While the government was in our hands 
it was our duty to maintain its conftitutional balance, by preserving the 
energies of each branch. There never was an attempt to vary the re ati- 
on of its powers. The ftruggle was to maintain the conftitutional powers 
of the executive. The wild principles of French libercy were scattered 
through the coimtry. We had our jacobins and disorganizers. They 
saw no diiFeren.ce between a king and a president, and as the people of 
France had put down their king they thought the people of America 
ought to put down their president. They who consider the conflitution 
as securing all the principes of rational and pi'adtical liberty, who were 
unwilling to embark upon the tempeftuous sea of revolution, in pursuit 
of visionary schemes, were denounced as monarchifts. A line was drawn 
between the government and the people, and the friends of the govern- 
ment were marked as the enemies of the peop'e, I hope however, that 
the government and the people are now the same : and I pray to God that 
what has been frequently remarked, may not in this case be disco- 
vered to be true, that they who have the name of the peop e the moft of" 
ten in their mouths, have their true interests the most seldom at their 
hearts 

The honourable gentleman from Virginia wandered to the very con- 
fines of the federal adminiftration, in search of materials the moft inflam- 
mabk and moil capable of kindling the angry passions of his party. 

. He represents the government as seizing the hrft moment which pre- 
sented itself to create a dependent monied interest, ever devoted to its 
views. What are we to und^ftand by this remark of the gentleman ? 
Does he mean to say that Congress did wrong in funding the public debt ? 
Does he mean to say that the price of our liberty and independence ought 
not to have been paid ? Is he bold enough to denounce this measure as 
one of the federal viclims marked for destruction ? Is it the design to tell 
us that its day is not yet come, but is approaching ; and that the funding 
syftem is to add to the pile of federal rums ? Do I hear the gentleman 
say we will reduce the army to a shsdow, we will give the na'jy to the 
worms, the mint which presented the people with the emblems of their 
liberty and their sovereignty, Ave will abo.ish — the revenue shall depend 
upon the wind and the waves, the judges shall be made our creatures, and 
the great work shall be crowned and consecrated |by relieving the coun- 
try from an odious and oppressive public debt. 1'hese steps I prefume 
are to be taken in progression. 

The gentleman Avill pause at each and feel the public pulse. As the 
fever encreases he will proceed, and the moment of delirium will be feized 
to finish the great work of destrudion. 

The assumption ot the state debts has been made an article of distin£t 
crimination. It has been ascribed to the worft motives ; to a design of 
increasing a dependent monied interest. Is it not well known, that those 
debts were part of the price of the*revolution ? That they rose in the ex- 
exigency of our affairs, from the efforts of the particular states, at times 



[ 4 ] 

wbea, the federal arm -coii'd not be extended to their relief? Each ftatSt' 
yt'3.5 entitled to the protection of the union, the defence was a commoa 
burthen and every ftate had a right to expeft that the expences altendi-. 
ing its individua! exertions in t^ie general cause, vouid be reimbursed 
from the pub'ic purse. I shall be perniitted further to add that the Unir- 
«^d States, bawng absorbed the sources of state revenue, . except dire A 
taxation, which was required for the support of the state govei.iments, 
the assu3Tiption of these (j,*?bts were ijecessary to saye some of the states 
from bankruptcy. 

The internal taxes are made one of the cripies of the federal adminisitra- 
tion. They were imposed, says the gent'eman, to create an host of de- 
pendents on executive favour. 1 h's supposes the past administrations tt» 
have beennot only very wicUedj, but very weak. I'hey lay taxes in order 
to strengthen their intiuenc?. Who is go ignorant as not know thut th^ 
imposition of a tax would.create an hundred enemies for one friend ? The 
jiame of excise was odious ; the details of coUeftion wei^e unavoidably of* 
fenfive, and it was to operate upon a part of the community least dis" 
posed to support public burthens, and most ready to complain of their 
"weight. A li't e experience \yi,il give the gentleman a new idea of the 
patronar^e of this (•overnment. He will fin i it not that dansferous wea- 
pon nx the hands of the adrainiftration vvhi( h he has heretofore supposed it, 
he will probably discover that the poison is accompanied by its antidote. 
And that a.n appointraent of the govei-nroentj^^hi'e it gives to the admiui- 
istration one lazy friend, will raise up against it ten aitjve enemies. 

Np"! The niot've ascribed for the impps'tion of the internal taxes is as 
7]ntounded, as it is uncharitable. The federal administration in creating 
burthens to support the credit of the nation, and to supply the means of 
its protedion, knew that they risked the favour of those upon whom 
their favor depended, I'hey were. willing to be the vitlims when the pub- 
lic good required. , r..-. 

7 he duties on imports and tonage furnished a precarloug teypnue ; a re- 
^'enue at all times exposed to deficiency from causes beyond pur reach. 
Tie i-iternal taxes otTered afraid less liable to be impaired by accident ; 
? fund which did not rob the mouth of labour, but v/as derived from the 
gratification of luxury. These taxes are an i^quitabl.e dillriliution of the 
public burthens. Through this medium the weflern country is enabled 
TO contribute something to the exps.nces of a governm.ent ^yhich has ex- 
pended and daily expends svich larp'e sums ill its deftjnce. "When these 
t^xes v/ere laid they were indispensable. With the aid of them it has 
been, dilihua to prevent an enrreafe of the public debt. And notwith. 
standing t^e fairy prosped'.s which now dazzle our eyes, I undertake to 
«ay, if you aBo'ish them this session, you will be obliged to rellore them 
or supply their piace by a direft tax before the end of two years. Will 
the gent'eman say, that toe direcft tax was laid in order to enlarge the 
hounds of pat' cnage. Will He deny that this was a measure to which we 
had been urged for years by our adversaries, because they foresaw in it the 
r..5in of the n c'erai vower. Mv word for it, no administration will ever be 
Ftrengthened by patronage united %\^ith taxes v.hiich the people are sensible 
efpayJiJfe^ 

U . 



L 5 3 

We were next told, that to get an army an Indian war was n?cessar)s^ 
,The remark was extremely bold, a» the hoiiQrable gentleman did not 
alledge a single reason for the po-ition. He did not undertake tq. 
state, that it was a wanton warj(;>r provoked by the government, Hedi^ 
not even venture to deny, that it w^as a war»t' defence, and entered into 
i a order to proteft our brethren on the frontiers from the bloody scalping 
knife, and murderous roin-aAhawk of the lavage. \Shat ought, 
the government to have done I Ought they '■to have estimated the va- 
lue of the blood, which probably woyld be fhed, and the amount of the 
devastation likely to be committed before they determined on resist- 
ance i' They raifed an --irmy and after great exjience and various for- 
tune they have secured the peace, and safety of the frontiers. But, why 
was the army mcntiotied on this occasion, unjesa to lorewarn us of the 
fate which awaits them, and to tell us, that their days are numbered t 
1 cannot suppose, that the gentleman mentioned this littl? army distri- 
buted on.a line of three <houfaud miles, for the purpose ot giving alarm 
to three hundjed thousand free and brave yeoEaanry ever ready to defend. 
the liberties of th^ coAnt.ry. 

The hfinorahle gentleman procee«l'-d to Inform the committee, that 
the goverment availing itself of the depredation of the Algerines, ever 
ated a navy. Did the gentleman meaq to insinuate that this war was 
invited by the. United States ? Has he any documents or proof to ren- 
der the lufpicion coloiabie ? No, sir, he has none. He well knowsr 
that the Algerine aggressions were extremely embarrassing to the go- 
vernment. \Vhen they ccmmenccd, Wte had no, irarme force to oppo;,e 
them. We had no harbors or places ot Ihelter in the Mediterranean. 
A war with thtse pirates could be attended with neither honor nor pro-. 
iit. It might coil a great deal of Ijiood, and m t,he end it might be 
feared that a contest so far from, home, subjc6l to numberless hazards- 
and diiSculties, could not be maintained. What v/oukl gentlemen have 
had the government to do f I know there are those who a"-e ready to 
aHfwer— abandon the Mediterranean tr^de. But would this have done ? 
Hie corsairs threatened to pafs the Streights, and were expected in trie 
Atlantic. Nayj sir, n was chought that our very coasts would not 
Lave been fecure. 

Will gentlemea gafarther a.nd fay, that the United States ought 
to relinquiih their commerce. I helieve this opinion has high authority 
to support it. It has been said,^ that we ought to be only cultivators 
«i the earth, and make the nations o.f Europe oar carriers. 

This is not an occasion to examine the E.p.iidity of this opinion ; but 
I Nyill onlyask, admitting the administration were disposed to turn tlie 
pursuits pi the people of this country from the ocean to the land, wht-. 
ther there is a power in the government, or whether there 
would be if we were as strong as the government of Turky, or 
even of France, to accomplish the object ? With a sea coast of 1700 
miles, with innumerabie hai-boi;s and inlets, with a people enterprizing^ 
beyond exarnpic, is it possible to say, you will have no ships or sanlors, 
nor merchants. The people of this country will never consent to give up, 
their na.vigation, and every administriition will find their^seives constrained^: 
to provide a^aus to protect their cQniiaaxt.^ 



C 6] 

Iff respecl to the Algerines the late administrations were singularly 
Tiffif;Mtanate, They were obliged to fight or pay them. The truepo- 
Ihy \v33 to hold a purse in one hand and a sword m the other. This was 
ths'po'licy of the government. Every commercial nation in Europe was 
te hntzry to these petty barbarians. It was not esteemed disgraceful. It 
■^a an affair of calculation, and tne administration made the best bargain 
t)' their power. They have heretofore been scandalized for paying tribute 
£©3; pirate, and now they are criminated, for preparing a few frigates, to 
protect our citizens from slavery and chains. Sir, I believe on this and 
many other occasions if the finger of heaven had pointed out a course and 
tlie government had pursued it, yet, that they would not have escaped 
tlise censure and reproaihes of their enemies. 

We M^ere toid, that the disturbances in Europe were made a pretext 
for sagmenting the aimy and navy. I will not, Mr. Chairman, at pre- 
sent go into a detailed view of the events wh'ch compelled the govern- 
ment to put on the armor of defence, and to resist by force the French 
3g:grestions. Al! the wird know the efforts which were made to ac- 
ewmplish an amicable adjustment of differences with that poAver. It is 
enatifs^h to state, that ambassadors of peace were twice repelled from 
the shores of France with ignominy and contempt. It is enough to say, 
that it was not till after we had drunk the cup of humiliation to the 
dsegs, that the national spirit was roused to a manly resolution, to de- 
pend otnly on their God and their own courage for their protedlion. 
Wfeafc, sir, did it grieve the gentleman, that we did not crouch under 
tie rod of the Mighty Nation, and like the petty powers of Kurope, 
t&me y surrender our independence? Would he have had the people of 
tl^e United States, rehnquish without a ftruggle, those liberties which 
l^cost so much blood and treasure ? We had not, sir, recourse to 
cunna til! the mouths of our rivers were choaked with French corsairs, 
'^i'ill our shores, and 'every harbor, were insulted and viofated. 'Till 
felf our commerei^l capita.', had been seized and no safety existed tor 
the remainder but the protedlion of force. At this moment a noble en- 
Sisusiasm el ei'iefized the country — the national pulse beat high, and we 
were prepared to submit to every sacrifice, determined only, that ourin- 
stcpeiidence shijiild bethe last. At that time an American was a proud 
aame in Europe ; but I fear, much I fear, that in the course we are now 
iikdy to pursue, the time will soon arrive, when our citizens abroad will 
^■ashamed to acknowiedge their country; 

The measures of '98 grew out f*f the public feelings. They were 
I&udiiy demanded by the public voice. It was the people who drove the 
government to anus, and not as the gentleman expressed it, the govern- 
utisnt which pushed the people to the X. Y. Z. of their political designs 
!;tfore they undtrstoood the A« B. C. of their political principles. 

But what sir, ilidt^e gentleman mean by his X. Y Z. I must look 
far so'iiethiug vrry sigaificant, something m.ore than a quaintness of ex- 
prgssion, or a play upon words in what falls from a gentleman, of his 
]lewB>in.g and ability. Did he mean that the dispatches which contained 
t&s®e' letters were impostures designed to deceive and mislead the people . 
ftl AmerJcH- Intended to rouse a falie spirit not justified|by events, llio' 



C 7 ] 

the gentleman had no respedl for some of the charafters of that embaeisj; 
though he felt no refpe£l for the chief justice or the gentleman appoint • 
cd from South Carolina, two charavSlers as pure, as honorable and exalt- 
ed, as any country can boast of , yet I shou d have e p cled tliat he 
would hare felt some tenderness for Mr. Gerry, in whom his party hgi 
since given proofs ot undiminished confidence. Does the gentleman h&^ 
lieve that Mr. Gerry would have joined in the deception, and assisted hi 
fabricating a tale which was to blind his countrymen andenab'e the g^ 
vernment to destroy their liberties ? Sir, I will not avail neyself of the 
equivocations or confession of Tallyrand himself, I say these gentlemea 
will not dare publicly to deny what is attested by the hand and seal of 
Mr. Gerry. 

The truth of these dispatches admitted, what was your govern- 
ment to do? Give us, say thedireciory i,200,oo0 Hvres for our o;ra 
purse, and purchase fifteen millions of dollars of Dutch debt, (whicli 
was worth nothing) and we will receive your ministers and negociate 
for peaces 

It was only left to the government to chuse between an unconditt- 
onal surrender of the honor and independence of the country, or a raaa- 
ly resistance. Can you blame, sir, the administration for aline of con- 
du6l, which has reflefted on the nation so much honor, and to whitli 
under God, it owes its present prosperity. 

These are the events of the general government which the gentle- 
man has reviewed in succession, and endeavored to render odious or 
suspicious.— -For all this I could have forgiven him, but there is one 
thing for which I will not, I cannot forgive him. I mean his attempt 
to distrub the ashes of the dead — to disturb the ashes of the great and 
good Washington. Sir, I might degrade by attempting to eulogize 
this illustrious charafter. The work is infinite y beyond ray powers. I 
will only say that as long as exalted talents and virtues confer honor a* 
mong men, the name of Washington will be held in veneration. 

After, Mr. Chairman, the honorable member had exhausted one 
quiver of arrows against the late executive, he opened another eqnallj 
poisoned against the judiciary. He has told us. sir, that when the power of 
the government was rapidly passing from federal hands, after we had 
heard the thundering voice of the people which dismissed us trom their 
service, we erefted a judiciary, which we expeAed would afford us the 
shelter of an inviolable sanAuary The gentleman is deceived. We 
knew better sir, the charafhers who were to succeed us, and we knew that 
nothing was sacred in the eyes of infide's. No, sir, I never had a 
thought that any thing belonging to the federal govevnment was holy in 
the eyes of those gentlemen. I could never therefore imagine that a 
sanctuary could be built up which would not be violated. I believe these 
.gentlemen regard public opinion because their power depends upon it, but 
I believe they respefl no existing establishment of the government, and if 
public opinion could be brought to support them, I have no doubt they 
woul dan nihil ate the whole. I shall at present only say farther on this 
head, that we thought the re-o'-ganization of the judicial system an useful 
measure, and we considered it as a duty to employ the remnant of our 
power to the best advantage of the country. 



t 



■} 



The lionc'ra'bie g«at]eman expressed KJs joy that llie constitution hkd 

fetlast become sacred iu our eyes — that we formerly held that it meant 
any thing or nothing. 1 believe, lir, that the constitution formerly ap- 
peared dirferent in our eyes from what it now appears in the eyes of the 
dominant party. We formeriy saw in it the principles of a fair and good- 
ly creation i We looked upon it as a source of peace-, of safety, of honi 
or andof prosperity to the country. But no v/ the view is changed ; it is 
the instrument of wi d and dark destru(flion it is a weapon which is r6 
prostrate every establilhment, to which the nation owes the Unexampled 
blessings which it enjoys. 

The present state of ihtconntrj is an unanswerable commentary 
npon our construction of the constitution. It is true thatwe rriade it 

■mean murh and I hope, sir, we shall not be taught by the present admini- 
stration that it th<»an even worse than nothing* 

This gentleman has not confined his animadversions to the individual 
tstablishment, but has gone so far as to make the judge, the subjeft of per- 

-■^onal inve<T.ivei They have been charged with having transgressed the 
bounds of judicial duty, and become the apostles of a political seft. Wc 
have heard of their travelling about the country for little other purpose 
than to preach the federal doftriue to the people. 

Sir, I think a judge should never be a partizah. No man would be 
more ready to condemn ajudge who carried his political prejudices or an- 
tipathies on the bench. But I have ilill to learn that such a charge can 
be sustained against the judges of the United States. 

The conftitution is the supreme law of the land, and they have taken 
pains in their charges to grand juries t© unfold and exp'dinitsprincip es. 
Upon similar occasions, they have enumerated the laws, which compos* 
our criminal code, and when some of those laws have been denounced 
by the enemies of the administration as unconstituti'-'nal, the judge* 
may have f< It themselves c'-ilied upon to express their judgments uporl 
that point and the reasons of their opinions. 

So far, but no farther, I believe the jii;dger> h^ve ^~ne ; and in go'njj 
thus far they have done-nothirig mete than faithtuUy discharged their 
duty. But if, gir, they have offended again it the ccnftitution or laws 
of the country, why are they not impeaclied ? 1 he gentleman now 
holds the fword of juOice, the judgts-dre not a privileged order, they 
have no flielter but their innocence. 

But in any vifew are the lins of the former judges to bt faftened upod 
tnc new judicial tystrm ? \Viiuld you annihilate a system, because some 
nieti under part of it had acted wrong. The tonstitution has pointed 
out a mode of punishing and removing the men, and dr es not leave this 
miserable pretext for the wanton exercife of powers which is now coni 
tcmplated. 

The honourable member has thought himself justified In making at 
charge of a serious and frightful nature against the judges. They hzvi 
been represented as going about searching out vicftims of the seditioa 

• law. But no fa£l has been stnted — no proof has been adduced, and ihi 
gentlemen must excuse me for refi sing my be'irf to the charge till it 
is susiaihed by stronger and better ground than assertion, 



C9] 

If, howivcr, Mr. Chainnan, the eyes of the genttemcln are delighted 
■irith vidims, if objetls of misery are grateful to his feelings, let me turn 
his view from 'he Avalks of the judges to the traft of the present execu- 
tive- It is in this path we see the real victims of stern, uncharitable, 
unrelenting power. It is here, sir, we see the soldier who fought the 
butties of the revolution ; who spilt his blood and wafted his strength to 
establish the independence of his country, deprived of the reward of his 
services and left to pine in penury and wretchedness. It is along this^athj 
that you may see helpless children crying for bread, and gray hsirs sink- 
ing in sorrow to the grave 1 It is here that no innocence, no merit, no 
worth, no services can save the unhappy se£lary who does not believe in 
the creed of those in poAver. I have been forced upon this siibjeft, and 
before I leave it, a' low me to remark that without enquiring into the 
right of the President to make vacancies in office, during the recess of 
the Senate, but admitting the pOAver to exiii, yet that it never was given 
by the constitution to enable the chief magistrate" to punish the in- 
sults, to revenge the wrongs or to indulge the antipathies of the man. If 
the discretion exifts, I have no hesitation in sayimg that it is abused when 
exercised from any other motive than the public good. And v/hen I 
see the will of a president precipitating from office, r en of probity, 
knowledge and talents, againll whom the community has no complaint, 
I consider it as a wanton and dangerous abuse of power. And when I 
see men who have been the vidlims of this abuse of pcv/er, I view them 
as the proper objects of national sympathy and commiseration. 

Among the causes of impeachment agamft the judges, is their attempt 
to force the sovereignties of the ftates to bow before them. We have 
heard them called an ambitious body politic ; and the fadt ] allude to, 
has been considered §s full proof ot the inordinate ambition of the 
tody. 

Allow me to say, sin the gentleman knoAvs too much not to knoAT 
that the judges are not a body politic. He supposed perhaps there wag- 
an odium attached to the appellation, Avhich it might serve his purposes to 
conned Avith the judges; — But sir, how do you derive any evidence of 
the ambition of the j'udges from their decision that the itates under our 
federal CO mpad were compellable to do justice ? Can it^ be shewn or 
even said, that the judgment of the court was a faise construftion of the 
conftitution i The policy of latertim.es on this point has altered thij( 
conftitution, and in my opinion has obliterated its fairest feature. lam, 
taught by my principles that no poAver ought to be superior to justice. It 
is not that I wish to see the states humble in dust and ashes ; it is not 
thrt I Avish to see the pride of any man flattered by their degradation ; 
but it is that I wish to see the great and the small, the sovei-eign and 
the subjed boAv at the altar of Judice, and submit to those obliga- 
tions from which the deity himself is not exempt. What Avas the effe6^ 
of this provision in the constitution ? It prevented the states being 
the judges in their own caufe, and deprived them of the power of denv- 
mg jiillice. Is there a principle pf ethics more clear than that s. maa 



'1^' 



[ 10 I 

ijfuglit not to- be a iudge in his own cause, and is not the principle equaf-" 
}y strong when apph'ed not to one man, but to a colledive body. It 
was the happi.iess ofoarGitintion which enabled us to force the greatest 
&ite to submit to the yoke of justice, and it would have been the glory 
©f the countty in the remocest times, if the principle in the constitution 
had been maintained. What had the states to dread? Could they fear injus^- 
tice when opposed to a feeble individual ? Has a great man reason to fear 
oppression from a poor one ? And could a potent state be alarmed by the 
unfounded claim of a single person ? For my part I have always thought 
that an independent tribunal ought to be provided to judge on- the claim.s 
agamst tl'us gc^vernment. — The power ought not to be w our c^wn handt 
— V/e are not. impartial, and are therefore liable without our knowledge 
t-o do wrong.. I never could see why the whole community should not 
be bound by as strong an obligation to do juilice toan- individual, as one 
man is bo,und to do it ta anoth<;£. 

In England the subject has a better chance for jvrftice against the so- 
vereign tlian in this country a citizen has against a state. 'I'he crov/n is 
never its owR arbiter, and they avIio- sit is- judgment have no interest in 
the event of their decision. 

The judges, sir, have been criminated for their conduft in relation ta 
to the sedition* a(!!l, and have been charged with searching for viftims who 
were sacrificed uadj&r it. The charge is easily made, hut has the gentle- 
man the means of su-pporting it ? It was the evident design of the gen-- 
tleman to attach the odiujxi of the sedition law to the judiciary ^. on this^ 
score the judges are surdy innocent. They did not pass, the a£t ; the 
legidature made the law, and they were o'bhg.ed by their oaths to exe- 
cute it. The judges decided the hvwto be eonftitutionali and I am not 
?aow going to agitate the queftion. I did hope when the law paffed, that 
its erlecl wou^d be useful. It_,did not touch the freedom of speech,, and 
was de;v?gned only to reftrain the enormous abuvses of the press}-. It went 
HG farther than to punish malicious failshoods published with the wicked- 
intention of deilroyiu:^" the governrm.ent. No innoeeot man ever did or 
eouidhave suffered under the law. No punishment could be inflicted till 
a jury was satislied tha.t; a p<iiblieation- was false, and that the party charg- 
ed knowing it to be false Isad published it wth an evil design. 

The misconditft of the judges, however on fhis subjed has been con- 
sidered by the gentlen?«i-n t!ie more aggravated,- by an attempt to extend 
the principles ©f the sedition a£l, by an adoption of those of the common 
}aw. Connected with this subjeft.such an attempt was never made by 
the judges. They have he'd generally, that the conftitution of the Unit- 
ed States, was predicated upon an exiiling common law. Of the sound- 
ness of that opinion, I never had a doubt.- I should scarcely go too far, 
were I to say, that ilript ot the common- law,- there would be neither 
Gonilitntion nor government. The constitution-is unintelligible without 
reference to the common law. And were we to go into our courts of 
justice v/ith the mere Statutes of the United States, not aftep could be 
taken,, not esfen a contempt could be punished. Those Statutes pre- 
scribe no forms of pleadmg,s, they contain no principles- of evidence, they 



furn'isfi no rule of property. If the common law does not exift In moat 
.cases there is no law, but the ■will of the judge. 

I have never contended, that the whole of the common law attached 
to the constitution, but only such parts as were consonant to the nature 
and spirit of pur government. W-e have nothing to do with the law of 
the Ecclesiastical" estabiishment, nor with any principle of monarchical 
tendency. What belcngs to us.^ and T??ha?: is nnsuitable, is a question 
for the sound discretion of the judges. The princple is analogous to 
one which is found 'in the v/ritings of ali jiirifts ^and commentators. When 
a colony is planted, it is established su'je6l to such pOTts ol the law of the 
mother couniiy as are applicable to its situation. When our fore-fathers 
colonized the wilderness of America, they brought with them the com- 
mon law tx£ EngLind. They cva'medit as their bii'th ri^jht, and they 
left it as the most vauab'e inheritance to their children. Let.me say, tftat 
this same common hw, now so much despised and vilified, is the crad;e 
of the rights and liberties which we now enjoy. Ic is to the convmon law v/e 
owe our distindlon from the colonills of France, of Portugal and of Spain. 
How long is it since we have discovered the malignairt qua i'des vh'i h 
are now ascribed to this law ? Is there a state in the Union which has act 
adopted it, and In which it Is tiot. In force ? Why is it refwied to the fed- 
eral constitution ? Upon the same principle, that every power is denied 
-which tends t® invigorate the government. Without this law, the con- 
stitution becomes, what perhaps maey gentlemep v/ishto see it, a dead 
Iciten 

For ten years It has been ti\e do Arines of our courts, that the comm.on 
law was in force, and yet can gentlem-en sa];-, that there'h.TS been a vitiim 
"v.'ho has suflered under it. Many have experienced its proieclion, none 
can complain of its oppression. 

In order to demonstrate the aspiring ambition of this body politic, the 
judiciary, the honorable gentleman stated with much emphasis and fpclmg, 
'that the pidges had been l)ardy enough to send their mandate into the exe- 
cuti^^e cabinet. Was the gentleman^ sir, acquainted with the fai^ whew 
he made this statement. It differs essentially, from what 1 know and irom 
what I have heard upon -the subjeft. Isfeail be allowed to state the fa d\. 
Several tommissions hsd been made out by the late adminiotratlon, for 
juftices of the peace of this territory. The commissions v.'ere complete 
— they were signed and sealed, and left with the c.'erks of the office oi 
State, to belianded to the persons appointed. The new administration 
■found them on the clerk's table, and thought proper to withhold them. 
These officers are not dependent on the will of the Pre.-^ideiit, The persons 
namicdin the co-mmissions considered that their appointmeuts were com- 
plete, and that the detention of their commissions was a wrong, and not 
justified by the legitimate authority of the Executive, lliey app ied to 
the supr6nie court, for a rule upon the secretarjr of state, to shew cause 
why a mandamus should not is;;ue,commanding him to deliver up the com- 
missions. Let me ask, sir, what couid the judges dp •? The rule to shew 
cause was a matter of course upon a new point in the least doubtful. Ts 
kave denied it, would h^ve been l9 shut tke doors @f iastice agava-^ 



C 12 ] 

tht parties. It concludes nothing, neither the jurisdiftion nor the regu- 
larity of the execu'iive a<}. The judges did their duly. They gave an ho- 
iioratie proof of their independence. They listened to the coir.p'aint of an 
individual ayainst your Pres dent, and have siiewn th< mselves disposed to 
grant redress against the greatest, man in the govesnment , if a wrong ha» 
been commiited, and the conftitution authorizes their interference, will 
gentelemen say, that the secretary of state, or even the Prefident 
IS not subjeft to law ? And if they v. elate the law, where can we apply 
for redress but to our courSs of jusiice. But, sir, it is not true, that the. 
judges issued their iXiandate to die executive ; they have oniy called upon 
the secieiary of state to shew ihem, that what he has done is r.ght. It i» 
Lut an inc p;eiu proceeding which decides noth'ng^ 

Mr. Giles rose to explain. He said, that the gentleman from Dela- 
ware had ascribed to him many things which he did not say, and had af- 
terwards undertaken to refute them. He had only said, that mandatory 
process had ifsiied,that the course pursued by the court indicated a be. 
iief by them, that they had jurisdiction, and that in the event of no cause 
being shewn, a miandamus would issue. 

Mr, Baya'd. — I stated the gentleman's words as I took them down* 
It is immaterial whether the mistake was in the gentleman's expression, 
or in my understanding. He has a right to explain, and I will take his 
pofition as he now states it. I deny, fir, that mandatory process has. 
issued. Such process would be imperative, and suppose a jurisdidiou. 
to exift ; the proceeding, which has taken place, is no more than notice 
of the application for justice made to the court, and allows the party to 
shew, either that no wrong has been committed, or that the court has no 
juri dic'Sion over the subjeft. Even, fir, if the rule were made absolute, 
and the mandamus issued, it wotild not be definitive, but it would be com* 
petent for the secretary in a return to the writ, to jullify the aft which 
has been done, or to shew that it is not a subjeft of judicial cognizance* 

It is not till after an insufficient return that a peremptory mandamri 
issues. In this transaflion, so far from seeing anything culpable in the 
conduA of your judges, I think, sir, that they have given a llrong proof 
of the value of that constitutional provision which makes them independ- 
ent. Tl.iey are not terrified by the frowns of executive power, and dare 
to judge between the rights of a citizen and the pretensions of a Presi- 
deni:. 

I be'ieve, Mr. Chairman, I have gone through most of the preliminary 
remarks which the honorable g;ent!eman thought proper to m.ake befcvc 
he proceeded to the coniideration of those points which properly belong 
to the subjeft before the committee. I have not supposed the topics I 
have been discussing, hadany connefn'on with the bill on your table; but 
I felt it as a duty not to leave unanswered charg;es against the former ad- 
rnimfirations and our judges, of the most insidious tendency ; which I 
know to be u.nfoundcd. and which were calculated and designed to in-- 
fiuence the decision on the measure now proposed. Why, Mr. Chairman, 
KVj the present subjeft been combined with the army, the navy, the in- 
ternal taxes, and the sedition law \ Was it to involve them in one com- 
jnou odiura> and to consign them to a common fate ? Do I see in tks 



L 13 3 

yrciimmary remarks 0? tlie honorable member the title page of' tne Vs- 
lume of measures which are to be pursued ? Are gentlemen sensible of the 
extent to whieh it is designed to lead them ?, The are now caded on to re- 
duce the army, to diminish the navy, to abolish the znint, to deftroy the 
independence of the judiciary, and wiii they be able to stop when they 
are next required to blot out the public debt, that hateful source of mo* 
nied interell and of ariftocratic influence ? Be assured, sir, we see but a 
small part of the syfhem which has been formed. Gentlemen know the 
advantage of progressive proceedinp-s, and my life for it, if they can carry 
the people with them, their carreer wii! not be arrefted while a trace re" 
mains of what was done by the former adrainstrations. 

There Avas another remark of the honorable member which Imuilbc 
allowed to notice. The pulpit, sir, has not escaped invective. The mi- 
nisters of the gospel have been represented, like the judges, forgetting 
the duties of their callin^T and em.ployed in disseminating ,the heresies of 
federalism. Am I then, sir, to underftand that religion is also denounced, 
and thatyour churches are to be shut up ? Are we to be deprived, sir, both 
of law and gospel ? Where do the princip'es ot the gentleman end ? When 
the system of reform is completed what will remain ? I pray God that 
this flourisliing country which, under his providence, has attained such 
a height of prosperity, may yet escape the dessolation suffered by 
another nation, by the pradice of similar dodtrmes. _ 

I heg pardon of the committee for having consumed so much trme up- 
on Doinrs httle connected with tlie subjea of the debate. liU I heard 
the^onorable member from Virginia yefterday, I was preoarea only to 
discuss the merits of the bill upon which you are called to vote- riis pre- 
liminary remarks were designed to have an eltea whicn i deemed it ma- 
terial to endeavour to counteraa, and I therefore yielded to the necessity 
of pursuing the course he had taken, though I was coflscious ot aepart^ 
iuTvervfar from the subjea before the committee, lo the chsrus- 
sion of that subjea I now return with great satisfaaion, and shall consi- 
der it under the two views it naturally presents ; the con .btutionahty 
and the expediency of the measure. I find it.moil convenient to consider 
firit, the queftion of expediency, and shall therefore beg permission to 
invert the natural order of the enquiiy. 

To shew the inexpediency of the present bill I shall endeavour to prove 
the expediency of the judicial law of the last session. In doing this it 
will be necessary to take a view of the heading features oft^he pre-exiit- 
ing system, to enquire into its defeas, and to examine how lar tne evuS 
complained of were remedied by the provisions of the late act.— It is not 
my intention to enter into the details of the former system ;^ it can be ne- 
cessary only to ftate so much as will distinctly shew its detects. _ 

There existed, sir, a supreme court, having original cognizance in a lew 
cases, but orincipally a court of appellate iurisdiaion. This was the 
great national court of dernier resort. Before this tribunal questions ot 
unlimited magnitude and consequence both of a civil and political nature 
received their final decision ; and I may be allowed to call it the natioiial 
crucible of juilice, in which the judgments of icfcnor courts were to be 



?«duced to their dements and cleansed from every impuritj. There war 
a circuit court, composed in each distrift of a judge of the supreme court 
and the distridl judge.. This was the chief court of business bpth of a 
eivil and criminal nature. 

In eachdiftrict acomtwas eftablished for affairs of revenue and of ad-? 
Tniraity and maritime jurisdiflion. It is not necessary for the purposes of 
the present argumeijt to giv<; a more extensive outline of the former plan 
of ourjudtciary. We <liscover that he judges of the supremg court in con- 
lequence of their composing a part of the circuit courts, were obliged to 
travel from one extremity toche other of this extensive country,. In order 
to be in the court house two months in the year they were forced to be 
upon the road six. — The supreme court being the court of la.st resort, 
having final jurisdiftion over queftions of incalculable importance, ought 
certainly to be filled with men not only of probity, but of great talents, 
learning, patience and experience. The union of these qualities is rarely, 
very rarely found in men who have not passed the meridian of life. 
My Lord Coke tells us no man is fit to be a judgetillhe has numbered the 
lucubrations of -twenty years. — Men of ftudious habits are seldom men of 
ftrong bodies. In the course of things it could not be expefted that men 
fit to be judges of your supreme courts would be men capable of traversing 
the mountains and wildernesses of this extensive country. It was an es- 
sential and great defeift in this court, that it required in men the com- 
bination of qualities, which it is a phenomenon to find united. It required 
that they should possess the learning and experience of ytars and the 
ftrength and activity of youth. I may say further, Mr. Chairman, that' 
this court, from its conftitution, tended to deterioration and not to im? 
provemert. Your judges, instead of being jn their closets and increasing 
by refleftion and study their stock of wisdopi and knowledge, had not eveii 
ihe means of repairing the ordinary wafte of time. Instead of becoming 
more learned and more capable, they would gradually lofe the fruits of 
their former indufhry. Let me ask if this was not a vicious conftrudlion 
■of a court of the higheft authority andgrea4:eft importance in the na- 
tion. In a court lYom which no one had an appeal and to whom it belong- 
ed to establish the leading principles of national jurisprudence. 

In the constitution of this court as a court of last resort, there wae 
another essential dcfeA. The appeals to this court are from the circuit 
courts. Thecircmt court consists of the district judge and a judge of 
the supreme court. Incases where the dietritl judge is interested, where 
he has been counsel, & where he has decided in the court below, the judg? 
oi the supreme court alone composes the circuit court. What then is 
substantially the nature of this appellate jurisdiftion ? In truth and prac- 
tice the appeal is from a member of a court to the body of the same 
•ourt. <s»The circuit courts are but emanations of the suprem.e court. Cast 
your €yesonthe supreme court ; you see it disappear, and its memberg 
afterwards arising in the shape of circuit judges. Behold the circuit judg' 
es ; they vanish and immediately you perceive the fcm of the supreme 
court appearing. There is, sir, a magic m tliis arrangement which is not 
friendly to justice. \¥hen the supreme court assembles, appeals come 



t is 1 

Irorri tlie various circuits of the United State*. T^cre are appeals ffo». 
the decisions of each judg«. The Judgments of each member pass ia 
succession under the revision of the whole body. Will not a judge while 
he is examining the sentence af a brother to day, remember that that bro- 
ther will sit in judgment upon his proceedings tomorrow ? Are the mem- 
bers of a court thus conllituted, free from all motive, exempt from all 
ibias whichcouldeven remotely influence opinion on the point of stridright;. 
and yet let me ask emphatically, w'hether this court, being the court of 
final resort, should not be so constituted, that the world should believe, 
and every suitor be satisfied, that in \Veighing the justice of a cause nothing, 
entered the scales but its true merits. 

Your supreme court, sir, I have never considered as any thing more 
than the judges of assize fitting in bank. It is a system with whick. 
perhaps 1 should find no fault, if the judges sitting, in bank did not ex" 
crcise a fi^al jurisditlion.- Political inftitutions should be so calcu- 
lated as not to depend upon the virtues, but to guard against the vice* 
and weaknesses of men. It is possible that a judge of the supreme 
court, would not be influerrced by the efprin du corps, that he would 
neither be gratified by the affirmance nor mortified by the reversal of 
his opinions ; but this, ffir, is estimating the strength and purity of hu- 
man nature upon a possible but not on its ordinary feale. 

1 believe, Mr. Chairman, that in praxrlice, the formation of the su"* 
premecourt frustrated in a great degree the design of its institution, I 
believe that many suitors were discouraged from seeking a revision of 
the opinion? of the circuit com t by a deep impression of the difficulties 
to be surmounted mobtafining the reversal of the judgment of a court 
from the brethren of the judge Who pronounced tbe judgment. The' 
benefit of a court of appeals well constituted is not confined to the mere 
ad of reviewing the sentence of an inferior courtj but is more extcnfive* 
ly useful by the general operation of the knowledge of its existence op'° 
on inferior courts. The power of uncontrolabie decifionis of the most de- 
licate and dangerous nature. When exercised in the courts it »s more for- 
midable than by any other branch of the government. It is the judiciary 
only which can reach the person, the property ,or fife of an individual. The 
exercise of their power is scattered over separate aases, & createsno ct irii' 
mon cause. The great safety under this power arises from the right 
of appeal, A sense of ihis right combines the repucation of the judge 
with the justice of the caiise. In my opiqibn it is a strong proof of the 
wisdom of a judicial system when few causes are carried into ths 
Sourt of the last resort.' I would say, if it were not paradoxical, that- 
the very existence of a court of appeals ought to destroy the occasion 
for it. ^ The confcience of the judge, fir,-will no doubt be agreat check- 
tipon him in the unbounded field of difcretion created by the uncertain- 
ty of law, but I should in general cases more rely upoH the cffed pro-.' 
duced by his kno\vledge,that an inadvertent or designed abuse of power 
y^^as liable to be correaed by a fupericr tribunal. A court of appellate* 
jurisdiaion organized upon sound principles should exiii:, though few 
catfies arose for their decision y for it is furely better to Uve a courl^ 



I ts ] 

ahc! no c^iiresj thiii to liave caufes and no coutt. I now nrbcce!^, fir, 
to consider the de Teds which are plainly discernable, or which have been 
discovered by pradlice in the ancient constitution of the circuit courts. 
These conrts from informaison which I have received, I apprehend 
were originally constrocted upon a fallacious princi}3ie. I have heard 
it stated that the design of placing- thejiidges of the supreme court in' 
the circuit courts, was to establish uniform rules ot decision through- 
out the United States. It was supposed, that the presiding judges of 
the circuit courts proceeding from the same body would tend to iuenti'ry" 
the principles and ruks of decision in the feveral dastritts. In practice a 
contrary eiTeSi has been discovered to be produced by the peculiar or—' 
ganization of these courts. In practice we have found not only a want of 
uniformity of rule between the different distridts — but no urifornnty oF 
rule in the fame dJstridl. No doubt there was an unit'crinicy in the ilecisiona 
of the fame judge, but as the fame- judge fcldom lat twice fucctesively in ■ 
the lame distrid, & sometimes not till after 'an interval of 2 or 3 ycars,- 
bis opinions were forgotten or re verfed before he returned. Thejiidges" 
-were not educated in the seme school. The pra6\ice of the cdiirts, the ■ 
forms of prcceeding as well as the rules of the property are extremely- 
various in the different quarters of the United Slates'.. The lawyers of 
the Eaftern, the middle and Southern states are scarcely professors of 
the^sanie science. These courts were in a state of pferpetual fluctua- 
tion, • The successive terms gave you courts in the same distri<^, as dif^- 
terent from each other as triose of ConnedictU and V'rgii ia. No system 
of pradicc could grow up, no ceri:ainty of rule could be estabiisbed. 
The seeds sown in one term scarcely vegitated before they v-ere trodden 
underfoot. The condition of a saitor was terrible — the ground wat 
always trerfrbling* under his teet. Tbe'opinion of a former judge was 
no precedent to his fuccessor. Each considered himself bound to follow 
the light of his own underllanding. To exemplify thefe remarks I will 
take the liberty of Rating a case which came under my own observation, 
Ax) application before one judge was made to quafh at attachment in 
favor of a subsequent execution creditor — =the application was rcsisied' 
upon tVi'o grounds, and tke learned judge, to whom the appHcation w. s 
^rst trade, expressing his opinion in support ot both grounds, dismissed 
the motion. At the succeeding- court a different judge presided, and 
the application was renewed end an'swered upon the same grounds. Tb« 
fccond leKrntd judge was ot opinion, that one point had no validity, 
but he considered the other suftainable, and was about also to dismiss 
the notion, but upon being pressed at last consented to grant a rule t<» 
rhev/ cause. At the third term, a third learned judge was on the 
bent--b, and though the case was argued upon i;s former principles he 
•was cf opinion, that both answers to the application were clearly insuf- 
ficient, and accordingly quafhed the attachment. When the cpiniong 
cf his predecessors were cited, he replied, that every man was to be 
taved. by his c-wn faith: Upon the opinion of onejudge, a suitor would 
•etoutin a -long course of proceedings and after losing much time and 
li'astiiig'.: muc];i money he wouki be n-iet by another'judge', -who woul^j teS 



C 17] 

him he had mistaken his road, that he must return to the place from 
which he started, and pursue a diiferent track. Thus it happened as to 
the cnancery process to compel the appearance of a defendant. Some 
of the judges considered themselves bound by the rules in the English 
-boolis, wou.e others conceived that a power belonged to the court 
upon the service of a subpoena to make a short role for the defendant t» 
appear aud answer, or that the bid should be taken pro confesso.j A case 
of ta.s iiind occurred, where much embarrassment v/as experienced. In 
the circuit comt iur the distridl of Pennsylvania a bill in chancery was 
iiJed agamst a person, who then happened to be in that distritSt, but 
whose piace ot residence was in the North-Western Territory. The 
fiubpceaa was served, but there was no ansv/er nor aspeaiance. The 
court to whicii the writ was returned, without difhculty, upon an ap-- 
plication, granted a rule for the party to appear and ausv/ev at the expi- 
ration of a iimiicd time, or that the bill be taken pro coniesso. A per- 
gonal service of this rule being necessary, the complainant was obhged 
to hire a messenger to travel more than a thousand miles to serve a copy 
pf the rule. At the ensuing court, affidavit was made ot tiie service 
and a motion to make the rale absolute. The scene immediately chang- 
ed, anew judge presided, and it was jio longer the same court. 

The autuoiity was called for, tp grant such a rule ; was it warrant- 
ed by any adl of congress, or by the practice of the state ? It was an* 
Swered therg is no att of congress, and the st^te has po court of chan- 
cery . But this proceeding ■yvas i^istitutccl and has been brought ;o its pre- 
sent stage, at considerable expence, under the dire£lion of this court. 
The juage knevv of no power the court had to dired. the proceeding, 
3.nd ne did not consider that the complainant could have a decree upon 
his bill without going through the long train of process found in the 
feooks oi chance^-y practice. 1 he cQmplainant took this course, and at 
a future tim^ was toid by another judg^, tiiat he was inciUTing an unne- 
cessary loss of tinie and money, aadt^at a common rule would an^v/er 
his purpose. 1 ask you, ivlr. Chairman, if any system could be devised 
. more likely to produce vex;jitiou and delay. Surely, sir, thelawisun»- 
certain enough m itself, ancl its paths suhkiently intricate and tedious, 
not to. require that your- suitors, should be burthen(?4 with additional 
embarrassments by the organization of your courts. 

The circuit is ti,e principal cQurt of civil 5ind criminal business j the 
defects of this court were thfrefore most genei'filly and sensibly felt. The 
high caaradiers of the judges at hrst brought suitors into the courts, 
but the busmess was gradually declining, tho ugh causes be.ong.uig to the 
ju'risdittion of the courts were multiplying. The contijiu^i oscillation 
of the court baffled all coBjedure as to the correct course of the pro- 
flceedir.g or the event of a cause. The Ic^w ceased to be a science. To 
advise your client it was less important: to be skilled in the books than to 
be acquainted with tne character of the judge who was to preside. Vvhea 
%ke terai approacSaed, the enquiry was, v.'hat judge are y^e _to have ? 



L «8 ] 

Wnat is his cha.!actcr as a lawyer ? Is he acquainted Vfith chancery law F 
Is he a stridi common lawyer ! Is he a special pleader ? 

When the chai-^dier of the judge was ascertained ; gentlemen would 
then, considering the nature of their causes, determine whether it wai 
moi-e advisable to use means to postpone or to bring them to a hear.« 
jng. . ' . 

The talents of the judges rather encreased the evil, than afforded a 
corrective for the vicious constitution of these courts. They had not 
drawn their ' nowledge from the same sources ,• Their systems were dif- 
ferent, and hence the charaderof the court more essentially changed at 
each success! v^e term. Thefe difficulties and embarrassments banished 
suitors from the court, and without more than a cqmmon motive, re- 
course was seldorn had to the federal tribunals. 

I have ever considered it also, as a defett in this court, that it was 
composed of judges of the highest and lowest grades. This, sir, was an 
pnnatural association ; the members of the court stood on ground too un= 
equal, to allow the firm assertion of his opinion to the district judge. 
Instead of being elevated, he felt himself degraded by a seat upon the 
bench of this couit. In the distrjft; co\ii-t he was every thing, in the 
circuit court he was nothing. Sometimes he was obliged to leave bis 
seatwhile his associate reviewed the judgment which he had given in the 
court below. In all cases he was sensible that the sentences in the court 
in which he was, were subjedl to the revision and control of a superior 
jurisdiction, where he had no influence, but the authority of which was 
Ihared by the judge with v/hom he was afting. No doubt in some in-; 
stances the distrift judge was an efficient member of the court, but this 
pever arose from the nature ot the systemj but from the perfonal cha%- 
raaer of the man. I have yet, Mr. Chairman, another fault to find with 
the ancient establishment of the circuit courts. They consisted only of 
two judges, and sometimes of one. The number was too smallj consi- 
dering the extent and importance of the jurisdidion of the court. Wili^ 
you remember, sir, that they hold the power of life and death, without 
appeal. That their judgments Aveie final over sums of 2000 dollars, 
and their origina'jurisdidion restrained by no limits of value, and that 
this was the court to which appeals were carried from the distrift 
courL. 

I have often heard, sir, that in a multitude of council, there was 
wisdom, and ifthe converse of the ma:iim bci equally true, this court must 
bave been very deficient. When we saw a single judge reversing the 
judgment of the distriil court, the objeftion was most striking, but 
the court never had the weight which it ought to have possessed and 
v/ou'd have enjoyed, had it been eomposed of more members. 

But tv/i judges belonging to the court an Inconvenience was sometimes 
felt f torn a division of their opinions. And this inconvenience was but 
poorly obviated by the provision of the law that in such cases, the 
cause should be continued to the succeeding term, and receive its decisis, 
®n from the opinion of the judge >yho should then preside. 



C 19 ] 

I do not pretend, Mr. Chairman, to have enumerated all the defecisi 
which belonged to the former judicial system. But I trust those which 
I have pointed out, in the minds of candid men, will justify the attempt 
of the legislature to revise that system, and to make a fairer experiment of 
that part of the plan of our constitution Vv'hich regards the judicial pow- 
er. The defedls, sir, to which I have alluded, had been a long t'me 
felt and often spoken of. Remedies had frequently been proposed. 

I have known the subjed brought forward in congress or agitated in pri- 
vate, ever since I have had the honor of a seat upon this floor. I be- 
lieve, sir>agreat and just deference for the author of the ancient scheme, 
prevented any innovation upon its material principlesi , There was na 
gentleman, who felt that deference more than myself, nor should I 
have ever hazarded a change upon speculative opinion. But praftice had 
discovered defeats which might well escape the most discerning mind in 
planning the theory. The original system could not be more than ex- 
periment ; it was built upon no experience. It v/as the fii-st application 
of principles to a new state of thingsi The first judicial law displays 
great ability, and it is no disparagement of the author, to say its; 
plan is not perfect. 

I know, i\r, that some have 5aid, and perhaps not a few have believ- 
ed, that the new system was introduced not so much with a view to- its 
improvement of the oldj as to the places which it provided for the friends 
of the administration. This is a calumny so notoriously false, and so 
humble as not to require nor to deserve an answer upon this floor. It can"" 
not be .supposed that the paltry object of providing for sixteen unknown^ 
men could have ever offered an inducement to a great party, basely to 
violate their duty ; meanly to sacrifice their charafiter, and foolishiy tci- 
forego all future hopes. 

I now come, Mr. Chairman, to examine the changes which were made' 
by the late law. This subjeft has not been correftly understood. It has' 
every where been erroneously represented. I have heard much said about 
the additional courts created by the act of last session. I perceive theni 
spoken of in the president's message. In the face of this high aufhori** 
ty, I undertake to state^ that no additional court was established by- 
that law. Under the former system there was one supreme court, audi 
there is bu£ one now. There were seventeen ditrict courts,, and there' 
ai"e tio more now. There was a circuit court held in each district, and 
Such is the case at present. Some of the disti'ict judges are directed to 
hold their courts at new places, but there is still iii each district but one 
district court. "What, sir^^ has been done ? The unnatural alliance he- 
tweeii the supreme and district courts has been severed, but the jurisdic- 
tion of both those courts remains untouched. The power or Authority 
of neither of thenl has been augmented or diixsinished.- — The jurisdic; 
tion of the circuit court has been extended to the cognizance of debts of 
4o0 dollars, & this is the only material change in the power of that court. 
The chief operation of the late law is a new organization of the circuit 
courts. To avoid the evils of the former plan, it became necessary to 
ffeate a new coi-ps of jud^s. It y^zi consider£d that the supveme comi 



C 20 3 

ought to be stationary and to have no connection with the judges over 
wncse sentences they had an appellate jurisdiction. 

To have formed a circuit court oxit of the district judges, would have 
allowed no coiirc of appeal from the distict court, except the srpreme 
court, which would have been attended with great inconvenience. But 
this scheme was opposed by a s'ih greater diii-.culty. In many districts 
the duties of the judge require a daily attention. In all of them busi- 
ness of great impoi-tance may on unexpected occurrences require his 
presence. 

' This plan was thought of ; it was w:''' examined and finally rejected, 
in consequence of strong objections <o whi :h it was liable, h- othing 
therefore remamed, but to coirpase the circ i;t court of judges distinct 
from those of the other counts. A mitting he propriety of excluding 
from this court the judges of the sup;t.me and distrift courts, I think the 
late cong-ress cannot be accused of any wanton expence nor even of a. 
neglect of economy in the new establishment. This extensive country 
lias been divided into six circuits, and three judges appointed for each 
circuit. Most of the judges have twncc a year to attend a court in three 
states, and there is not one of them v,'ho has to travel farther, and who- 
in time will not have more labor to perform, than any judge of the state 
courts. When we call tomind,"that the jurisdiction of this court reaches- 
the life of the citizen, and that in civil cases its judgments are final to a 
large amount ; certainly it will not be said that it ought to have. been, 
composed of less than threejudges. One was surely not gnough, and i£ 
It had been doubtful v.'hether two were not sufficient, the inconvenienrey 
■\vhich would have frequently arisen from an equal division of opinion^, 
justices the provision which secures a deteninination in all c^ses. 

It Avas additionaily very material to place cri the bench of th's court, 
a judge from each state, as the court was in. general bound to conform 
to the law and the practice of the several states. ■ 

I trust, sir, the committee are satisfied that the number of judge* 
■which compose the circuit court is not too great,and that the legislature 
•\vouldhave been extremely culpable, to have committed the high powers- 
of this court to fewer hands. Let me now ash, if the coriipensation altow,-, 
ed to these judges is extravagant. It is little more than half the allowance 
made to the judges of the supreme court,. It is but a small proportion of 
the ordinary practice of those gentlemen of the bar, who are $t^ -and to- 
whom wc ought to look to fill tlie places.— -.You have given a salajry of 
2O06 dollars. The puisne judges of Pennsylvania, I believe, have more» 
When you dedntl the expences of the office, you will leave but a mode" 
rate compensation for service, but a scanty provision for a fami'y. When, 
Mr- Chairman, gentlemen coolly consider the amendments of the late law 
I- flatter myself their candour will at leait admit that the present modifica- 
tion was fair'y designed to meet and remedy the evi's of the old system. 

The supreme court has been rendered stationary. Men of age, of learn- 
ing, and of experience, are now c-spable of hvhiing a seat on. the bench j 
they hare time to mature tlieir op-inioiis in cau.scs on which they are called 
to dccidcj and they have lei^surc to devote to their books, and to augmicat 



[21 3 

tihcir store of knowledge' It was our hope by the present establishment ' 
of the court, to render it the future pride, and honor, and safety of the na^ 
tion. It is this tribunal which must stamp abroad the judicial charader* 
of our country. It is here, that ambassadors and foreign agents resort 
for justice, and it belongs to this high court to decide finally, not only oa ■ 
controversies of unlimited value between individuals, and on the more im- 
portant collision of state pretensions, but also upon the validity of the: 
laws of the states, and of this governments Will it be contended that such 
great trusts ought to be reposed in feeble or incapable hands. It has been 
asserted that this court will not have business to employ it. Theasserti'' 
tion is supported neither by what is paft, nor by what is likely to happen. 
During the present session of Congress at their last term the court was 
fully employed for two weeks in the daily hearing of causes* But its bu- 
siness must encrease* There is no longer that restraint upon appeals 
from the circuit courtj which was imposed by the authority of the judge 
af the court to which the appeal was to be carried ; no longer will the ap- 
prehension of a secret unavoidable bias in favour of the decision of a 
number of their own body, shake the confidence of a suitor, in resorting 
to this court, who thinks that justice has not been done to him in the courc 
below. The progressive encreaseof the wealth and population of the 
country^ will unavoidably swell the business of the court. But there is 
a more certain and unfailing source of employment, which Avill arise in. 
the appeals from the courts of the national territorry. From the courts 
of original cognizance in this territory, it affords the only appellate juris- • 
diftion. If gentlemen will look to the ftate of property of a vast amount ia- 
this city, they must be satisued that the supreme coilrt will have enougk 
to do for the money which is paid them. 

Let us next consider, sir, the present ftate of* the circuit courts* 
There are six courts, which sit in twenty two distrifts, each court vi*' 
sits at least three distrii£ls, some four. The courts are now composed of 
three judges of equal power and dignity. Standing on equal ground 
their opinions will be independent and tirrri. Their number is the best lof 
consultation, and they are exempt from the inconvenience of an equal di*" 
vision of opinion. But what T Value most, and what was designed to re- 
medy the great defeft of the former system, is the identity which the courE 
maintains. Each distrift hasnowalways the same court. Each distrift will 
hereafter have a system of praftice and tmiformity of decifion. The jud- 
ges of each circuit will now study, and learn and retain the laws aud prac. 
tice of their respeflivC distrifts. It never was intended, nor is it practica- 
ble that the same rule of property or of pi-oceeding should prevail from 
!N!ew- Hampshire to Georgia. The old courts were enjoined to obey 
the laws ot the respeAive states. Those lav/s fluftuate with the will of 
the state legiflatures.and no other uniformity could ever be expefted, but ia 
theconstruftion of the constittition arid statutes of the United States. This* 
uniformity is still presferved by the control of the supreme court over ths- 
courts of the circuits. Under the present establishment^ a rational systeriV' 
Qf jurisprudence, will arise. The praftice and local laws of the diiferent dki>. 
tci6ls may vary,but in the same distriil they will be uniform. The practice 



[22] 

•f easli distrift ■vvill suggest improvements to the otliers, the progressive i», 
sioption of wliich wili in time assimilate the systems of the several districts. 

It is unnecessary, Mr. Chairman, for me to say any thing in relation 
to the distridl courts. Their former jurisdiction was not varied by the 
iaw of the last session* 

It has been my endeavouf, sir, td give a correft idea of the defefts of 
the former judicial plan, and of ihe remedies for those defefcs introduced 
by the law lio\v designed to be repealed. I do not pretend to say that 
the present system is perfeft, I contend only that it is better than the old. 
H, sir, instead of destroying^ gentlemen will undertake to improve the 
pi-esent plan, I will not only applaud their motives, but will asist in their 
labour. We ask only that our system m^ay be tried. Let the sentence 
of experience be pronounced upon it. Let us hear the national voice 
after it has been feiti They will then be better able to judge its merits. 
In practice it has not yet been complained of ; and as it is designed fof 
the benefit of the people^ how can their friends juilify the aft of taking it 
from them before they have manifested their disposition to part with it ? 

How, sir, am_ I to acountfor the extreme anxiety to get rid of this 
establishmento Does it proceed from that spirit which since power has 
been given to it^ has so unrelentingly persecuted men in office who belongs 
edtoa certain se£l ? I hope there will be a little patience; these judges 
are old and infirm men ; they will die ; they muft die ; wait but a short 
time^ their places will be vacant; they will be filled by the disciples of 
the new school, and gentlemen wili not have to answer for the poiMcal 
iaurder which is now meditated « 

I shall take the liberty now, sir, bf paying some attention to the objec= 
tioris which have been expressed against the late establishment. An ear* 
ly exception, which in the course of the debate, has been abandoned by 
tnost gentlemen, and little relied on by anyone, is the additional expencei 
The gentleman from Virginia stated the expence of the present establish* 
ment at 1 37,000 dollars. — On this head the material question is, not what 
is the expenceof the whole establishment, but what will be saved by the 
repealing law on the table. I do not estimate the saving at more thair 
28,500 dollars* You save nothing but the salaries of 16 judges of 2000' 
dollars each* From this amount is to be deduded the salary of a judge 
of the supreme court, which is 3,500 dollars. Abolishing the present- 
system will not vary the incidental espences of the circuit courti YoU 
i-evive a circuit court v.'hose incidental expences will be equal to those of^ 
the court you destroy. The encreased salaries of the distrift judges of 
Kentucky and Tennessee muft remain. It is not proposed to abolish their 
offices, and the admissions upon the other side allow that the salaries can* 
not be reduced; 

If there were no other objeflion, the present bill could not pass with- 
Oiit amendment, because it reduces the salaries of those judges, which ia' 
a plain undeniable infradtion of the constitution. But, sir, it is not a 
fair way of treating the snbjcdl to speak of the aggregate expence. The 
grefit enquiry is, whether the judges are necessary, and whether the salaries 



■ Z £3 3 

allo'^yed to them are reasonable ? Admitting this utility of the judges, \ 
think no gentleman win contend, that the compensation is extravagant, 

W^ are told of the expence attending the federal judiciary. Can geutle-i 
imen tell me ofa government underwhich justiceismore cheaply adminisier- 
ed, add together the salaries of all your judges and the amount but little ex- 
ceeds the emoluments of. the Chancellor of England. Ascertain the ex~ 
pences of state justice, and the proportion of eacii state of the expence of 
federal justicr, and you v/ill find that the former is five times greater than 
the latter. Do gentlemen expeft that a syftem expanded over the whole 
union is to cost no more than the establishment ofa single state ? Let ;* 
be remembered, sir, that the judiciary is an integral and co-ordinate part 
yfkh the highest branches of the government,— No government can 
long exift without an efficient judiciary. It is the judiciary which ap- 
plies the law and enables the executive to carry it into efTefk. Leave 
your laws to the judiciaries of the states to execute, and my Avord for it 
in ten years you have neither law nor constitution. Is your judiciary so 
coflly that you will not support it? Why then lay out. so much money 
\ipon the other branches of your government ? I beg that it will be recol'' 
leifted that if your judiciary costs your thousands of dollars, you legislature 
fostsyou hundreds ofthousandsj and your executive millions, 

An objedlion has been derived from the paucity of causes in ^he federal 
^ourts, and the objection has been magnified by the allegation, that the 
number had been anually decreasing. The fads admitted} I draw a very 
different inference from my opponents. In my opinion they furnish the 
strongest proof of the defedls of the former establishment^ and of the ne- 
cessity ofa reform, I have no doubt, nay, I know it to be a fact that 
many suitors v/ere diverted from thofSe tribunalsby the iluftuations to which 
they were subje£l. Allow mehoAvever, to take some notice of the fafls. 
They are founded upon the presidentialdocument No. 8, Taking the fads 
as there stated, they allow upwards of 5 o suits annually for each court, 
''ivhenit is considered that these causes must each have exceeded the value o£ 
500 dols. and that they were generally litigated cases, I do not conceive, 
that there is much;ground to affirm, that the courts were without business. 
But, sir, I must be excused for saying, I pay little respe6l to this docu- 
ment. It has been shewn by others in several points to be erroneous, 8c. 
from my own knowledge, I know it to be incon eft. What right had the 
president to call upon the clerks to furnish him with a lift of the suits 
ivhich had been brought, or were depending in their respeftive courts? 
Had this been directed by Congress, or was their any money appropriat" 
«d to pay the expence ? Is their any law v,hich made it the duty of the 
fclerks to obey the order of the executive ? Are the clerks responsible for 
refusing the listsj or for making false or defeftive returns ? Do we know 
any thing about the authenticity of the certificates made by the clerks ? 
And are we not now aiming a mortal blow at one branch of the govern^ 
jnent, upon the credit, and at the instigation of another and a rival de- 
|>artment ? Yes, sir, I say at the instigation of the President, for Icon" 
iider this business wholly as a Presidential measure. This document 
9in4 hh message ehew that it ;Drigrn4ted with him j I consider it as now 



1 24 ] 

syc'ecuted hy hims and I believ«3 that he has the power to arrest its pro* 
gress, or to accomplish its completion, 1 repeat that it is his measure, 
I bold him i'f sponsjb e for it ; and I trust iu God that the time will come 
• when he v'fill be called upon to answer for ic as his aiit. And I trust the 
time will arrive, v/hea he will hear us speaking upon the subjecl more 
sfTectualiy. 

It has been stated as the reproach, sir, of the bill of the last sessions 
that it was made by a party at the moment when they were sensible, vhat 
their power was expiring- and passing into other i'lauds. It is enough i^f 
ime, that the full aud legitimate pov/er existed. The remnant was pic 
nary and eihcient. And it was our duty to employ it according to oup 
judgments and confciences for the good of the country. We thought 
the bill a ssjutory measure, and there was no obligation upon us to leave 
it as ^ work for our successors^ Nay, sir, I have no hesitation ip a.vow's 
ing, that I had no cojifidence in the persons who were to follow us. And 
I was the ntore anxious while we had the means to accomplish a work 
which i beli-ved they would not do, & which I sincerely thought, woui4 
contribute to the sai'ety of the nation by giving Itieng-th and support co 
the constitution through the storm to which it wa:. likely to be exposed^ 
The fears, which I then felt, have not be dispeliec, but multiplied by 
what I have since seen^ Iknow nothing which is to be allowed to lland^ 
lobferve the inftitutior.s of the government falling around me, and wiiere 
the work of destruAion is to end God ajone knowi. Wediicharged our 
confciences in eslablibhiing the judicial system, which now exists, aiiu it 
will be for those who nuw hold the powei of the government to answer 
for the abolition ofit, which they at present meditate. We arc told 
that our law was againft the sense of the nation. Let me teil those gen^ 
tlemen, they are deceived, when they call themselves the nation. i.hcy 
are only a dominant party, and chough the sun of federalifm Ihouid ne"- 
ver rise again, they will shortly Had men better or worse than them-selves 
thrusting tliem out of their places. I know it is the cant of inose in 
power, however they have acquired it, to call themselves the nation. 
We have recently witnessed an example of u abroad. Bow rapidly did 
the nation change in France, at one time Brissot calkd himself tiic nati- 
on— then Robespierre, afterwards Tallien and Barras, and finally Buo- 
naparte, But their dreams were soon dissipated, and th^-y awoke in suct, 
cession upon the fcaifoid, or in banishment. Let not these gentlemen 
flatter themselves that heaven has reserved for them a peculiar deltiny. 
What has happened to others in this country, they must be liable to„ 
Let them not exult too highly in the enjoyment of a little brief and fleet- 
ing authority. It was curs yesterday, it is theirs to day, but lo-mdrrow' 
It may belong to others. 

[Mi. Bayard here stated, that he h?.d gone through the remarks he 
liad to make conneded with the first point of the debate y that he 
©bserved, that the common hour of adjournment had gone by, and thal^ 
he should sit down in order to allow the committee to rise, if chcy 
thought proper ; and that he shculd beg leave to be heard the fpilow* 



i: ^5 ] 

ing day upon the second point. After some conversation, th« cona- 
niittee rose, reported — * and the houfe adjourned.] 

Saturday, February 20, 1802. 

1 owe to the committee the expression of my thanks for the patience 
with which they attended to the laborious discussion of yesterday. 

It will be my endeavor in the remarks which I have to offer upon 
the remaining point of the debate, to confume no time which the impor- 
tance of the subje6l does not juftify. I have never departed from the 
iqueftion before the Committee, but with great reludance. Before I 
heard the gentleman from Virginia, I had not an obfervation to make 
unconnected with the bill on the table. It was he who forced me to 
■wander on foreign ground, and be affured, fir, I fhall be guilty of no 
new digreffions where 1 am not covered by the fame jullification. 
. I did think that this was an occalion when the houfe ought to 
have been liberated from the dominion of party fpirit, and allowed to 
decide upon the unbiafTed diftates of their underftanding. The vain 
hope which I indulged that this courfe would be purfued was foon diffi- 
pated by the inflammatory appeal made by the gentleman from Virginia, 
to the paffions of his party.' This appeal, which treated with no re- 
fpeft the feelings of one ^lit of the houfe, will excufe recriminations 
which have been made, or v/hich fhall be retorted. We were difpofed 
to conciliate, but gentlemen are deceived if they think that we willfub- 
mit to be trampled on. 

I fhall now, fir, proceed to the confidcratioh of the fecond point which. 
the fubjedt prefents. However this point may be difguifed by fubtil- 
Hes, I conceive the true queftion to be — has the legiflature a right by 
a law to remove a judge? Gentlemen may Hate their queftion to be, 
has the legiflature a right by law to vacate the office of a judge ? But, 
as in fad they remove the iudgC: they are bound to anfwer our queftion. 

The queftion which 1 ftate they will not meet. Nay, I have conli- 
dered it as conceded upon all hands, that the legiflature have not the 
^ower of removing a judge from his office ; but it is contended only that 
the office may be taken from the judge. Sir, it is a principle in lavw 
which ought, and I apprehend docs, hold more ftrnngly in politics ; 
that what is prohibited from bein^ done direflly is reftrained from be- 
ing done indirettly. Is there any difference but in words, between tak- 
ing the office from a judge and removing the judge from the office? Do 
you not indireftly accompli'lh the end, which you admit is prohibited. 
I will not fay that it is the fole intention of the fupporters of the bill 
before us, to remove the circuit judges from their offices ; but I will 
fay that they eft.blifh a precedent, which will enable worfe men than 
themfelves to make ufe of the legiflative power for that purpofe upon 
any occafion. If it be ccnftitutional to vacate the office, and in that 
way to difmifs the judge, can there b? a que 'ion as to the power to re- 
«r«atc the offic« and to fill it ^.vith another man ? Repeal to-day the bill of 



L ^^ 3 i 

the bit feflion, atrl the circuit ju'-Jwes are no longer in office. To-mdr* 
tow refcind this repealinsr aft (and no one will doubt the right to do it) 
and no effeft is produced but the removal of the judges. To fuppofe 
that luch a cafe may occur is no vagary of imagination. The thing has 
been donr, fha"nelefs^y done in a neighbouring ilate. The judges there 
held their offices upon the fame tenure with the judges of the United 
States- Three of thenl were obnoxious to the men in power; The ju» 
dicial law of the ilate was repealed, and immediately re=en^dted without, 
a Teil being thrown over the trHnfa.S\ion. The obnoxious men were re- 
moved, their places fupplied wi^rh new charafters, and the other judges 
tvere reappointed. Whatever fophiftry may be able to fhcw in theory, 
in praftke there t^ever will be f->und a difference in the cxeixife of the 
powers of removing a judge and of vacating his office. 

The qiieftion, wh'ch we are now confidering, depends updn the pror^ 
Vifions contained in the conflitution. It is an e ror often committed, 
lipcn plain fubjeil? fo Search for reafons very profound. Upon the 
l^refent fubjeft the llrOng provilians of the conilitution are fo obvious, 
that no eye can overlook them. Tiiey have been repeatedly cited, arid 
as long as the queliion Rated is under dicuffion, they inutl be reiterated. 
There are two pfominent provillous to which I now particularly allude, 
ill. The judges fball hold their offices during good behaviour. 2d. 
Theii confipenfation Ihall not be diminifhed during their continuance ia 
tjffice, Thef? are provifions fo clearly underftood upon the firll: impref- 
llon, that their meaning is rather obl'cured than dlullrated by argument. 
"V^ hat is mtant, rind what has been univerfally underftood by the tenure 
of '< good behaviour?" A tenure for life if the judge commit no mifde- 
iiieanor. It is fo underftood and expreffed in England, and fo it has 
always been received and admitted in this countryc' The exprefs pro- 
'<rinon then of the conftitution defines the tenure of a judge^s office; 
a tenure during life.. How is that tenure expressly '(\\id\i^Qd I By the 
good behaviour of thp judge. Is the tenure qualified by any other ex- 
frefs condition or limitation f No ocher. As the tentire is exprefs, as 
but one exprefs limitation is inipofed upon it, can it be fubjed. to any 
e/tner limitation not derived from necefTary implication. If any mate* 
iirial provifion in the conftitution can- in no other manner be fatisfled, 
Irhan by fubjedrng the tenure of this office to fome new condition, I 
Tvill then admit that the tenure is fjbjeft to the coridtion. 

Gentlemen have ventured to point out a provifion which they conceived 
furnilhed this neceffary implication. They refer to the power given to 
Contort fs trom time ta time to eftabliib courts inferior to the fupreme 
court. If this power cannot ht exercifed without vacating the offices 
bf exifting judgeg, I will concede that thofe offices' may be vacated. — - 
But on this head there can be no controversy. The powet has been, 
and at all times may, be exercised without vacating the office of any 
judge. It was so exercised at the last Session of congress ; and I surely 
do not now dispute the ight of gent em^n to eftabiish as ma .y new courts 
as they may deem expedient. The power to establish new courts does 
sot therefore neeessarjiy imply a power to abolish- the offices of existing 



t 

judges, because the existence of those offices does not prevent an execui 
tion of the power. 

The clause in the constitution to which I have just aL'uded, has fur~ 
nished to gentlemen their famous position, tfeat though you cannot re 
move a judge from h's office, you may take the office from the judge. 
Though ! should be in order, I will not call this a quibbles but I shall 
attempt in the course of the argument, yet more clearly topipveth.-t 
it is oriej I do not contend that you cannot abolish an empty office, but 
the point on which I rely is, that you can do no aft which impairs the 
independence of a judge. When gentlemen assert that the office may be 
vacated notwithstanding the incumbency of the judge, do they consider 
that they beg the very point which is in controversy. The office cannot 
be vacated without violating ihe express provision of the constitution iq 
relation to the tenure. 

The judge is to. hold the office during good behaviour. Does he hold 
it when it is taksn from him ? Has the constitution said, that he stiall 
hold the office during good behaviour, unless congresb shall deem it ex- 
pedient to abolish the office? If this limitation has been omitted, what 
authority have we to make it a part of the constitution ? 

The second plain, unequivocal provision, on this subject is, that the 
compensation of the iudt<e shall not be diminished during the tinfe he 
continues in office. This provision is direftly levelled at the power of 
the legislature. They alone could reduce the salary. Gould th s pro- 
vision have any other design than to place the judge out of the power of 
congress? and yet how iraperfed and how absurd the plan. You can- 
not reduce a part of the compensation, but you may extinguish the 
whole. What is the sum of this notable reasoning? You cannot re- 
move the judge fiom the office, but you may take the office; fiom the 
judge. You cannot t;ike the compensation from the judge, but yoa 
may separate the judge irom the compensatiom. 

If your constitution cannot resist reasoning like tjiisa then indeed is 
it waste papeto 

1 will here tyrn aside, in order to consider a variety of arguments 
drawn from different sources, on which gentlemen on the other side have 
placed a reliance, I know of no order in which they can be classed, and 
I shall therefore take them up as I meet with thern on my notes. It was 
urged by the honorable: member from Virginia, to whQm I.have so fre- 
quently reicrred, that vvhat was created by law, might by iaw be anni- 
hilated. In the application of his, principle, he disclosed views which I 
believe, have not yet been contemplated by gentlemen of his party.— =._ 
He was industrious to shew that not only the inferior courts, but the 
supreme court.derives its existence from law. Tl^^ P'tsulenc and legis.. 
lature exist under the constitution. They came into being without the 
aid of a law. But though the constitution said, there should be a su" 
preme court, no judges could exist till the court was organized by a law. 
This argument, 1 presume, was pushed to this extent in order to give 
notice to the judges of the supreine court of their fatej and to bid thesis^ 
|)r£pare for their end. 



I shall ret attempt to discrimiRate between the tenure of the offices 
©f the judges of the supreme and inferior courts.'. Congress has power 
to oiganize both descriptions of courts, and to lirhit the number of 
judges, but thty have nopoiper to Ihn'iX or define the tenure of office^. Con^; 
gress creates the ©ffice ; the president appoints the oilictr, but it is nei« 
ther under congress or the president, but vnder the constitutton, that the 
judge claims to hold the office durzng good ■behaviour^ . The principle assert* 
ed aoes not in this case apply; vhe tenure of- office is pot created by. 
law, and it the truth of the principle were admitted, it world not follow, 
that the tenure of the office might be vacated by law« But the principle 
is not sound. I will. shew a variety of cases which will pro\^e. its fallacys 
Among the obnoxious measures of the late administrat-ion, was. the. 
loan of five millions, which was funded at 8 per cent*,- The. loan was 
created by a law and funded by law, ■ Is thegenteman prepared to, say,, 
that this debt, which was funded by a law of the former legislature, may 
be extinguished by a law of the present. • Can you, by calling the inte* 
rest of this debt exorbitant and usurious, justify the reduAio;i of.it ?— » 
Gentlemen admit that the salary of a judge, though established by a 
law, cannot be diminished bya law. > The same thing must be allowed 
•with respedt to the salary of the president. Sir, the, true principle is;,' 
that one Jegiflature may repeal the. ad sf a fqrmer, in cases not probij, 
bited by the constitution. Tfe correct question therefore is, whether 
the legiflature are. not forbidden by the constitudon to abridge the tenure 
of a judicial office ? ; . ■ . . ■* . 

In order to avoid cases of a nature similar to those which I have pu^j 
the gentleman from Kentucky, (Mr. Davis) apd after him the gentlema;!, 
from Virginia, endeavoured to draw a distin6tion between laws execuied,-, 
and laws executory-. . , . : . ... .. ■ , . ■ - •• ; ^ ,', 

The distinction was illustrated by reference to the case of a state ad^" 
mitted.by a law into the union. iKere it is said the law is executed, and- 
funftus officio, and if you repeal it, still the state remains, a member )i.t£ 
the union. But it was a«ked by the gentleman .from .Kentucky, suppos-: 
inf a law. made to admit a state into the union, pt a future time, befoi^^e 
th^ time of admission arrived, could not ihe law be repealed., I will an= 
swer the.question to the satisfa£^ion of r.he gentleman, I: y stating a case- 
which exists.' < By an ordinance of congress, in the year i787,' congress- 
ordained, that when the population wichin the limits of a state within^ 
the North'' Western Tsrritory, should amount to 60,000 souls, the distiitl'' 
should be admitt<:d as,. a member ,of the union,. ; Will the gentleman 
venture to doubt as to this, case ?< ■■ Would he dare to tell the people of 
this country, that congress had the power to disfranchise them,? . , 

The law, in .the case .1 refer to, is executory,, though the event upon 
which it is lo.take effect' is Jimited by population and not by tfm.e. 

But, sir, if there. were any thing in the. principle, it has, no influence up- 
on the case to which it has been applied, A. law has created the oflRce 
of ajudge, the judge has been appointed and the office filled. , The law- 
is therefore executed, and upon the vcy distinction ol the genileman, can- 
not be repealedo The law fixing the compensation is executory, and 



# c '5 ] 

so is that which establishes the salary of the President, but tho' executory 
they cannot' be repealed. The distindion therefore is idle, and leaves the 
i^uestion upon the ground of the repeal, being permitted or prohibited by 
the constitution. • I .shall now advert, sir, to an argumcHt urged with great 
force and not. a little triumph, by the honorable member frorii Virginia, 
This argument is de.rivtd'frqm tlie word, ^hold' iji the expression,: he judge 
shall )6o/ci .his office during good iVehaviqur. ' It is considered as correla- 
tive to tenure'. The gentletuc^n remarks, tbat the constitution pro*^ 
vides, that the President shall ' nominate the judge t'-T his office, and 
when appro-^ed by the senate ghall commission hini.' ' It is hence inferred, 
that as the. president nornihatsS'. and comnussions the judge, the judge 
i)o/c/j the office of the president ; and that Avh en the Constitution provides, 
thnt the tenure of the qffice fr.all be daring ^ood behavior, the pyo vision ap- 
plies to, the president, ■& restrainsthe p6wer'|vhich otherwise yould result 
in consequence b£ the offices being holdcn of hiip, to remove the- judges at 
•will. .This is.an aigument, sir, which J should have thought, that ho* 
norable member Avould have been the last person upon this floor to have 
adopted. . ' It not only imputes to the president royal attributes, but pre- 
rogatives, derived i'rom the rude doflrines of the feudal JaAV. Does the 
gentleman mean to contend^ that the president of these sta.tes'^ like the 
monarch of England, is the fountain of honor, of justice and of ofBce ^ 
Does he mean to contend,' thatth^ courts are the President's courts and 
the judges, the president's judges?- Does he juean to say, sir, that the 
chief magistrate is always supposed to be present in these courts, and 
that the judges are but the images of his justice ? To serve the paltry 
purposes of this argument, would the gentleman be willing to infuse in- 
to our constitution, the vit^l spirit of the feudal dodrines ? He does 
not believe,' he cannot believe, tl^at when the word ' hold' ^vasem*- 
ployed,' any reference waS' had to its feuda.1 import. The language of 
Ihe constitution furnishes no support to this feudal argument. These 
officers are not called the j udges of the President, but the judges of the 
United States.- They are a branch of the government equally impor- 
tant, and designed to beco'-ordinate with the president.. If» sir, because 
the President nominates to office and commissions, the office is held of 
him, tor a s'.ronger reason where by patent he grants lands of the United 
States, the lands are held of him. And upon the grantee's dying with- 
out heirs,! the lands would escheat not to the United States, but to tlic 
President. ' In England, the tenure of lands and cfficea is derived from 
the same principle. All lands are held mediately or immediate. y 
of the crown, because they are supposed to have been originally 
acquired from, the personal , grant of the m.onarch. It is the 
same of office, as the king is supposed to be the source of all of- 
fices. Having the power to grant, he has a right to define the terms of 
the grant. . These terms constitute the tenure. When the terms faiUthe 
tenure ceases, and the objeft ofthe grant reverts to tht- grantor. 'i'his 
gentleman has charged others with monarchical tendencies, but never have 
I before witngssed an attempt so bold and strong to incorporate in ®ur con» 



■w 



1 30 J 



jstitiJtipr)} aranK monarclikal prir.ciple. If, sir, the principle of our con? 
8titiition on this subjed bcrerul^'ican and not inonarclicai, and the judges 
hold tleir offices of the Uni'^cd States, and not of the President, then the 
ap'bliration of his arj^umeiit has all the force against the gentleman, v/hich 
ht designed it shoiild have against hh adversaries. For if the office be 
held of thf Ui:ited States, and the tenure of good Vehavipnr was design; 
ed to restrain the power of those of whom the office was hoklen it will 
iofow, that it was ti e intention to restrain the power of the Ignited States. 
' We were told by an honorable gf-ntierr.an horn Virj-inis, yvho lose 
early in the debate, (Mr. Thpmpspn) ihat the p'inc'ples we aovocated 
tended to establish a sinecure systcn^. in the coiintiy. Sir, 1 am as lit- 
tle disposed to be accessary to the establishmtnt of sucb a system as 
any gentlepap on thisficor. But let me ask hew ti it; system is to he 
prodiifed ? We establioled judicial ofRces, to -which ranreici'S i:,i ci irn-^ 
portant duties were assigned. A conr^pensat'on has been allc cd tc the 
judges, v,hichpo one will say, is in)nodfrt,te, or c'Errcportinntd to 
the service to be rerdered. These gentlemen first abolish t!ie duties of 
the cffcts, then call the judges pensiontrs^ and aftervvards accuse us of 
establ^sliing sinecures. Inhere are no pensioners at present, it ther^ 
should !^ any, tbey will be tl:e creatures of ihjs law. I haye ever con- 
sidered it as a sound and nioral 11 axur, that no one shculc- ava'l h;n:self 
of his own wrong. It is a max ni. which Qught be ecjually chh'osLOry 
upon the pub ic as iipon the piivate man. In the prestrt cast, the 
judge offers you his service. You cannot say, it is not worth the n o- 
pey you pay for it. Yon refuse to accept the service ; and a^ttr engage 
ing to yaj him while he continutd to perform the service, yon denj him 
his ccmi..ersatior, because he pcglecis to render services uhich yo\i, 
h;u'e prevented him frem perfoiming. Was injustice ever more tla- 
grant? Surely, sir, the judges are iimorent. If vecid wrong, w) y 
should tbev be punished and oisgraced ? They did not cass the cbnoxi— 
0U2 law, they did not create the offices, they bad no participation in the 
o'udty bu/iuess, but they were invited upon the faith of government, to 
renounce their private professions, to relinquish the epioltiment 
of other emp.'oyments, and to eater, into U^e serviie oi th^. 
United States, ' v-ho enga;.-ed to letain them dtirmg their lives, 
if they were guilty of no niiscoi cud . "1 hey have behaved theu]- 
jelves vvtl!, uncxceptionably v^eil, when they fmd the government re- 
scinding the ccntrad made with them, refusing the stipulated pi ice of 
i]:t.ir labour, dismissing them, from service, and in order to cover the 
sc-ridalcus breach of faith, st"gmarizing them with nanies wb'ch m.ay. 
renoer them odious to their couritryroen. Istheie a gentleman on the 
i^oi.r of this hoiite, who would not revok at such condud in private life I 
lo there one who wcu d feel himself justil'ed, after emp'oying a person 
for a certain time, and agi-eemg to pay a certain ccm.pensation, to dis- 
miss the party from the service upon any caprice which a'tei'ed his views, 
denv him the stiint-atsd icm.pensation, and to abuse im with opprobri- 
cuc-itrnes, for c>pei?iing the benefit of the (-ngagencnt ? 

A bo/d attempt was iHade by one of the gentlemen from Virginia, 



r 3' J 

(Mr. d-iles) to force to his aid the Statutes of 1 3th Wm. 3d. T call It 
a bold attempt, because the gentleman was obliged to re!y upon his 
own assertion to support the ground of his argument. He 

stated that the clause in the constitution was borrowed frortt a 
simi'ar provisijn iri the Statute. I know nothing about the fa'^, 
but I will allow the gentl^niari rts full benefit. In England at an earlier 
period, the judges held their coninlissons during the goo>l pleas jre of the 
monarch The parliament desired, and he king coasented, that the 
royal prerogati'/e should be restrained. That the offices of the judges 
should not depend on the will of the croVn alone, but upon the joint 
pleasure of the crown and of parliamenc The king consented to part 
with a portion of his prerogative by reiiriquishin'T' his power to remove 
the judges without the advice of his; 'parliament. But hy dn exhress 
clause hi this statute;he retained the authority to rerho've them with the ad- 
vice of his parlianient* Suppose the clause had been omitted, which re- 
served the right to remove upon the address of the two houses of par la- 
ment, and the Statute had been worded in the unqualified language of 
our constitution, that the judges should hold their o.tices during good- 
behavior, would not the prerogative of removal have beeu abolished al- 
together ? I will not say th'at the honorable member has been peculiarly 
unfortunate in the enrployment of this argument,' because; sir, it ap- 
pears to me, that most to which he has had recourse, when justly consider- 
ed, have operated against the cause they were designed to suppo't. 

The gent'eman tel is us tha:t the constitutional provision' on this sub* 
jecl was taken from, the statute' of Wi.iiam'. — Will he answer me this 
plain question ? Why do we find omitted in the constitution, that part 
of the statutory provision,' which allowed the judges to' be removr>d up- 
on the address of the two branches of the legislature ? Does he suppoas 
that the clause was not observed ? Does be imagine that the provision 
was dropt through inadvertency X Will he impute so gross a negleil: to 
an instrum.erit every sentence and word, and comma, of which', he hasf 
told us was so mature'y considered, and so' v/arily settled. No, sir, it is 
impossible ; and give me leave to say, that if • this part of the constitu- 
tion were taken fro'n the statute (and the gentlentan front Virginia must 
have better information- on the subjedt than I have) that a s ronger ar^ 
gument could not be adduced, to shew that it was the mtention Qi those 
who framed the constitution, by omitting that clause in" the statute which 
iraade the judges tenants of their offices at the v/i!I of parliament; to' 
Jmprovein this country the English plan of judicature, by rendering the 
judges independent of the legislature. And I shall have occasion in the 
course of my observations to shew, that the strongest reasons derived 
from the nature of our governnYent, and wkich do not apply to the En- 
glish form., required the improVexm'ent to'bem'ade.' . 

Upon this point, sir, we m-iy borrow a fevv' additional rays of light 
fi-om the constitutions of Pennsylvania, of Delaware, and of som '>ther 
states. In those states it has been thought, tliat there migh be miscon- 
du6l on the part of a judge, not amounting to an impeachable offence, 
for which be should be liable to' be removed- Their conatitutlons tbere=» 



E i^ 3 

fore have varied from that of the United States, and rendered .their judges 
liable to he removed upon the address of two thirds of each branch of the 
legislature, :, Does, it not strike every mind, that it was the intention of 
those . constitutions to have judges independent of a majority of each 
branch of the Iegifla.turej; and I apptehend.also thatitmay he fairly in- 
fen-ed, that it was .understood id ■ those states when their constitution 
•>vas formed,, that even tv/o third: of each branch of the legislature 
would.not have the power to remove a judge whose tenure of office was 
during goodhehavior, .unless the pow'er was expressly given to them by 
the constitution.; I cannot wel!, conceive of any thing moi'e^ absurd iq 
an instrument designed to last for centuries and to bind the furious passi- 
ons of party, than to fortify one pass to judicial independence, and to 
leave another totally unguarded agkirist the violence oi legislative 
power, i _ . .. , : - - . ,, •■' •.■'•'■, .'.';,-'■;'■' 

It has been luged by the gentleman frcm Virginia, that our admission 
that congress has a power to modify the office of judge, leads to the 
conckision, that they have the |50wer to abolish the office* Because, by 
paring awa:y their pqwefs they may at length reduce them to a shadow,, 
and leave them as humble and as contemptible as a court of piepoudrco 
The office of a judge consists of judicial powers vvhich he is appointed 
to execute. Every law which is ; passed increases or diminishes those 
powers, and so far modifies the office : .nay it is competent for the legis-; 
lature to prescribe additional duties or to dispense vv'ith unnecessary ser? 
vices, which are conneded with the office of trie judgCa But this pow- 
er has its bounds. You may modify the office to any extent which does 
not effeft the independence of the judge. The judge is to hold the pf«" 
lice during good behavior ; now modify as you please, sO that you' not 
infringe this consiitutiorial provision. 

Do you ask me to draw a Hne and say, thus far you can go and no far- 
ther. I adn^t no h'we can be drawn. It is an aff'air of sound and bona 
Jide discretion. Because a discretion on the subjeft is given to the legis- 
Jature, to argue upon the abuse of that discretion is adopting a principle 
subversive of all legitimate povv-er. ' , 

The constitution is predicated upon the exiftence of a certain degree of 
integrity in man. It has trusted powers liable to enormous abuse, if all 
political honesty be discarded. The legis'atu're is not limited in the 
amount of the taxes wliich they have a right to impose nor as to the ob- 
jects to which they are to be applied. Does this poAver give us the pro- 
perty of the country, because by taxes Ave might draAV it into the public 
coff'ers, and then cut up the treasury and divide the spoils ? Is there any 
pOAver in respedl to Avhich a precise line can be draAvn, between the dis- 
creet exercise and the abuse of it, . 

I can only say therefore on this subjefl, that every man is acquitted 
to his OAvn conscience Avho bona Jide does not intend, and who sincerely 
does not believe, that by the law Avhich he is about to pass, he interferes 
with the judges holding tlieir offices during good behaviour. 

I am noAv brought, Mr, Chairman, to take notice of some remarks 
which fell from tlic gewt'eman from Virginia, which do not belong to the 



t'33l '\.„, 

M)]C?t Before U3 ; But are of" su^cient Jniportaneil); deserve part!Cii!|r 
ktteation. He called our attention in a very impressive manner to the 
State of parties in this house at the time when the aA of the last sesaipa 
bassed. He describes us in a state of blliid paroxysm of party rage, in- 
capable df discerning the liature or tendency of tUe measures we were pui:- 
suin^. That a majoritv of the house were struga:ling to cduriteraa the 
espi^ession of the public vnll, in relation to the person who was tobethp 
6hief magistrate of the country. , . , . ^ .. J ; .-. . 

I did suppose, sir, that this business was at an end, and I did imagine 
that a'sgentleiTiein had accemplished their objea, they would hav-e beea 
satisRed. , Bur ss the sabjed is again renewed, wemuftbe allowed a loW- 
d'to justify oar coadUa. I know riot what the gentleman calls an ex- 
pression of the public wi-iL Tiiere ^^ere two candidates for tiie olfice_of 
President, who Were presented to the Mouse of Uepresentativeg With 
equal sulfrages.' Tue constitution -ave us the right and made it diir dur 
ty to eled that one of the two wkom we thought preferable. ' A pub'.j^ 
riian Is to xiotice the pub.ic will as constitutie'na'ly e vpre^sed, The gen' 
tie.hari from Virgiriia'and many others may have ha^ vhen- preference b;it 
that prefere.ice of the puoUc will did not appear by its constitution. 
al expression. Sir, I am not certain, that eitlier of those candidates had 
a majority of the country In his Tavoari EKclading the ^tate of South- 
Caroiln^. the country w.s equally aivida, We know that parties ja 
that! state were nearly equally ba'-iriced, arid the claims of both the canui- 
dates Were supported by nd other scrutiny in;othe public \yill, thanoua; 
official ret»rn of votes. Those vo es are very impenea evidence^ of Uie 
tfue will of a majority of the nation, THey resaited from political lu- 
trip-ue, and artificial arrangement. 

Wheii ytc look at the votes we niust suppose, th-it every man in Vir- 
ginia voted the same way. These votes are received as a rorrea expres- 
^ion of the public vi^Ili. , A nd yet we know* that if rht votes of ttiac lla. e 
were apportioned according' to the sevefalvoices of the people, that at 
least seven out of twenty one, v/ou.d h^ive feen opposed lo the success- 
ful! ca-didatesV It 'vas the suppression of tiie wlii of one third of VV', 
ginia, which enatales gcntlemt- n now to say, that the present ch>ef magi- 
strate is the man of the peop d. I consider that as the public will which': 
is expressed by coastitunona! organs. To th?t wd.l I boW arid submit. 
The public wi:l, thus m:mdested, gave to the House of Represencaclves^, 
a cho:ce of tv/d iri'en for President. Neither of them was the irian whoia' 
I wished to make President, but my ekaion v^'as confined by the con- 
stitution to one of the tv.0, and I gave ray vote to ihe one who I thou,-ht 
was the greater and better man. 'ihat vote I repeated, and in_ that vo e 
I sho'uld have persisted, had I riot been dnven from it, by Iinp- rious neces- 
sity. The prosnea ceased of the vdie H-ing eff fti-aSand the akeraatlve,, 
en 7 remained of taking one man for P^ree'idcnt or having no President at ^ 
all.' I choose, as I then thought, the lessrr evil ■ _ ^ , 

From the scene in this house, the gentleman carried us tii due in the 
senate. I should blush, sir, for the honor of tbecountiy, could I sup- 
pose that the law designed to be repealed, owed its support in that body 
to the motives which have been indicated. The charge desi^ined to be 
conveyed, not only deeply impUcatts tii€ InttjTi-Ity of tai-uviduals ©f me 



■i 34 :i 

8,*nate, but of tlie person who was then chief magistrate. Th^gent'es* 
man, going beyond ail precedent, has mentioned the names of members 
of that bod-}*, to whom commissionj issued for offices not created by.thg 
bi'J before thern, but which that bil! by tiie promotions it afforded wai, 
likely to render vacafit. He has considered the scandal of the transac- 
tien, as aggrava':ei by the issuing of commissions for offices p'ot ac^tually, 
vacant, upon the bare presumutiori that they wouid become vacant, by 
the incumbents accepting commissions, for h'gh offices \vhich were issued 
in their favor. The gentleman has particularly dwe'.t upon the indecent 
appearance of the business from two conimissions being heid by different, 
persons at the same tinie, for the same office* "" '' 

I beg that it will be understdod, that I mean to give no opinion as to 
the regularity of granting a commission for a judicial oiFice.' upon the 
probability of a vacancy, before it is icliially vacant. But I shall be alf 
lowed to say that so much doubt attends tiie point, that an, innocent. 
mistake ragat be made on tht^ subjecl. I believe, sir, it Uas been the 
"praftice to consider the acceptance of an office, as reiaiiing to the date of, 
of the commission. The oiScer isalowed his salary froma that date, up-t 
on thepiincipie that the commission is a grant of tlie office, and the title 
commences with the date of the grant. Thisprincip e is certainly lable^ 
to abuse, but where there was a s:tspiciGn of abuse, 1 2:)"esume the govern-, 
ment v/ould'depai-t from it. Admitting the omce to pass by the corn^ 
mission, and the acceptance to relate to its date, it then does hot appear, 
very lucorrect in th.: r.se of a commission, for the office of a ciixm't, 
judge, granted to a district j.idgcj as the acceptance of the commission" 
for the former Oifice relates to thd dale of the commission, to considei'\ 
the latter office as vacant at the sanie time. The offices a e incompatible. 
You cannot suppose the same person in both offices at the same time.— 
Frora the moment^ therefore, that you consider the office af circuit judgd, 
filled by a person who holds the commission of distri<il judge, you must 
consider the officd of distrift judge as vacated. Ihe grant is contmgent^^^' 
if the contingency happen, the office vests from the date of the commisi, 
sion, if Che contingency does not happen the grant is void. If this rea- 
soning be sound, it was not irreguUa- in the late administration, after , 
granting a commission to a district judge, for the pla.e of a circuit jud^-e, , 
to make a grant of the oifice of the distriil judge, upon the contingency 
erf his accepting the office of circuit judge. I now return, sir, to that- 
point of the charge, which was personal in its nature, and of infinitely 
the most serious import. It is a chai'ge 33 to which, we can only ask,^ 
is ii true? If it be true, it cannot be excused, it cannot be palliated, it 
is vile profiigate corrupt'oa which every h->nest mind will execrette. Butj 
sir, we are not to coiidert^n, till we have evidence of the fad. If the of, . 
fence be noinous, the proof ought to be plenary. I will consider th« 
evidence of the I'aSi, upon which the honorable member has re ied, and 
1 wi!! shev/ iiim by the application of it to a stronger case, that it is of 
a niture to prove nothing. 

■ Let me first ttate the principal case. Tv/o gentlemen of the senate, 
Mr. Read of SoutiuCai-oina, and Mr. Green of Rhode. Island, who voted 
in' favor of the law last sess-ion, each reccved an appointment to the place 
of d:»tricl jud^-e, which was vcsignea tube v-cated by tlie promotion of 



[ 35 J 

llte'tiistr^M; judge to the r ffic : of circuit judge. . The gent'cman convey, 
ed to-US a distmil impressian of his opinion, that there was an undei'- 
8tand:ing between these gentleinen and the president, and that the offices 
^•erc th^ promised price of tlieu" votes. 

I presume 8ir» the gentleman Aviii havp more charity, in the case which 
I am about to niention, and he \rii! for once admit thst public men oug'-t 
not to be copdemned, upon iocse conclusions drawn from equivocal pre-, 
sumptions. 

The case, sir, to y/hich I refer, carnes me qpce more to the scene of 
the presidential eledtion. 1 should not have introduced it into this de- 
bate, had it not been called up by the honorable member from Virginia. 
In that scene I had rny part, it was a part not barren of incident, and 
wbirh has left an impression, which cannot easily depart from my recoir 
le'ftion. I know who Vi'ere rendei-ed important characters, either from 
the possession of persona! means, or from the accident of pol.Kical situa- 
tion. A'od now. sir, let me ask the honorable member^ what his refiectiona 
and belief will be, when he observes that every nian, on whose vote the 
event of t! ,e eletlio.nhung, has since been distinguished by pA^csidentia! fa- 
vor. I fear, sir, I ghail violate the decorum of parliamentary proceeding, 
irl the rnertioniig of names, but I hope the example which has been set me 
^i\\ be admitted as an excuse. Mr Charles P nckney of Houth-Carolina 
was not a membei of the house, but he was one of the most aftive, ef„ 
ficient ^nd successful promot'rs of the election of the present chief ma- 
gistrate. It was well ascertained that the v.ues of South-Carohna were 
XQ turn the equal balance of the scales. The zeal and industry of Mr« 
Pinckney had no bounds. The doubtful politics of South-Carolina wers 
decided,. and her votes cast into the scale of iVir. Jtticrson. Mr. Pinc!<, 
ney has hnce be?n appointed minister plenipotentiary to the court of 
Madrid. An appointment as high and honorable, as any within the 
gift of the executive. I will not deny that this preferment ]s the re- 
ward of talents and servircF, altltough, sir, I have never yet heard of 
the talents or the services of Mr. C Pinckney. In the house of represen- 
tatives I knovv^ what was the value of the vote of Tvlr. Claiborne ot Ten- 
tiessee. The vote of a state was in his hands. Mr. Claiborne has since beer, 
raised to the high dignity of governor cf tiic Missiesippi Territory. I 
know hpw great & how greatly lek, was the importance of the vi;tc of Mr. 
l^inn of N, Jersey, The delegation of the state consists ofiivc members. 
Two of the delegation wgre decidedly tor Mr. JciFcson ; two vere de- 
cidedly for Mr. Burr. Mr. lAnn was cinsidered as inclining to one 
side, but stili doubtful. Both parties looked up to him for tr,e vote of 
jf^Jev^-Jerscy. He gave it to Mr. jcffcrs&n, and Mr. Linn has since bad 
the profitable office of supervisor of his district gonfered upon him. 
Mr. Lyon of Vermont, was in this instance an important man. He 
neutraiizttt ti.e vote of Vermont, His absence alone v,ould have given 
the vote of a state to Mr. Burr^ It -vvas too much to give an ofiic;: to 
Mr. Lyon; his character v/as too low, But Mr. Lyon's son has bee r 
handscmciy provioed for in one of the executive ot^:ces. I (ball adi 
to the catalogue but tiie name of one mure gentleman, Mr. Edwarv4 
Livingstou of New-York. I knew t^ell, full well I knew the c, a«e- 



^aenceof this t?-enMefr>aB. UU means were not limited to K's ovrn yq|f| , 
nay, I always considered more than the vote of New -York within his^' 
p wer. Mr, L.vJngs;on hag been made the attorwey for the difrlvift ot 
rMeu..YorV — the road of prefermpnt has been opened to him, asd his 
Krrther has been raised to the d^stingmshed pla^e of mifiigter pienipo- 
t, ntia;y to the French Republic . This catalogue might be swelled to a 
mrch gre:;ter mpgni'tjd^' j? but I fe.ir, Mi". Chairman, were J to proceed 
furl' e. it mioht be si:pp'ofed, that I rnysclf harboured the uncharitable 
sv:spicii>ns of the integrity of the chiff magistrate, and of the purity of 
the gent'emen whom he thought proper to promote, which it is iTiy de* 
sign alone to banifh from the mind of the honorable member frornVir- 
piiiia. It wotjld be doing me great injulb'cetes fuppose, that 1 have the 
spsllest desircj or have had the remotest in'ention to tarnish the fame 
ot the pregent chief ma -..istrate ; or of any of the honorable ^entl«m^n 
vho h;ive beer t!'e obj fts of his favor, by the staiem^nt which I have 
tn;.de ; my motiv.* is of an opposite n;.'ti(re, The late president appoint- 
ed geatifonep to office, to y.'hom he owed no personal obligations, but 
who only supported whst has been considered as a favorite raeasure.— ^ 
This has been assumed a§ a snfHcient ground, not only of suspicion, but 
of condemnation. The pif^'sent executive, leaving scarcely an exception, 
has appointed to office, or h^ r> by 3ccident, indire£lly gicjtihed evej^y man, 
■who had any disfiKgiiished m«aiis in the competiticn, for the presidential 
offic", of deciding the el<°flion in his favor. Yet, sir, all this furnishes 
too feeble a presumption t© warrant me to expi'ess a suspicion of the 
integrity of a grrat oificrr, or of he probity of honor;ihle men, in the 
discharge of the high functions which they had derivccl from the cenfi- 
dencfc of their country. I ynasurit, sir, in tins case, the tionorable mem- 
bfr frona Virginia is as exempt from this suspicion as myself. And I shall 
have accorophshed my whale objec-t, if I induce that honorable mem- 
ber, and other membeis of the committee, who cntertajn his suspicions 
as to the conduct of the late executive, to review the ground of those 
faspic'ons, and tu consider that in a case furnishing much itronger 
grucnd for the pivsumption cf cnaiinal.ty, they have an unshake* belief, 
211 uub^oke^i coniidence in the pui J>)' and fainvirss of the executive con^i; 
cuA. 

1 return again to the suhje£l before the cpmnaittces frcm'the unplesfant 
«jigre>stipn to which I was for<:ed to lubmit, in order te repel uisinua-, 
tions which were calculaicd to h«ve the worst efl"c(St, as well abroad as 
■vT'thiq the walls cf this hcnseV I shall now cursorily advert to some 
mgaments oi muur irrportancc, which are supposed to have some 
"Hf eight py gentlemen on the othtr side. It is said? *-hat if the courts are 
g-.nctuarii s and the judges cannot be rernc'ved by law, it would be in the 
power ot a party ^o create a host of them to live as penfiqners on the 
Qf;n'itry, Ttiis aigunaent is predicated upon an extrtme abuse of power, 
V hich can never fairly be urged to t* strain the k'gitiiiaate exercise of it: 
zs well might it be urged, that ^ sybst^iu-nt cor.gress had a right to rc- 
«S';ce thr salary of a judge, oi of the President, fixed by a former con- 
gress, bf'CtUise if the right did not exist, oic congiess migst confer a. 
^;iU■y oi 500,00Q or JjCCQjCQQ dollars to tfee mippvcrishirient of th^>' 



4 



C 37 J 

powotry. It wi'll be time enoi?gh to decide upon ^^•se extreme caaof 
when they occur. We aretoia, that (hr do6i we, we conrend fo-,. ena^ 
bles^ one legislature to derogate from the posfer of auother. That it 
atmhutes to a Ibrrner j| power which denies to u aafesequent J^gisiauire. 
This ia not CQrrca. ' We adniic that tlv.s con.,;T-^i posses3?s all the 
power p:-,8sessed by the last congress, Thr. congVfss bad ^ powgr to 
establish qourts, so bas tKe present. That congreas had not, nor did it 
dairn the power to abolish the office of a judifc whiie it '^as' hilcd.— 
Though they thought five judges «n«ier the new system suffioem to 
flpnstitute a capreme court, they did not attempt to touch tiie office of 
father of the six judges. Though they considered it more convenient 
to have circuit judges in Kentucky andTennesiseej than distria judges^ 
^hey did pot lay their hads upon the offices of the distna judges. We 
therefore deny no power to this congress? which was tio- denied to the 
last. An honorable member from Virginia, (Mr. Thompson) seriously 
pxpressed;his alarni, left the principles we contended for jhoutd introduce 
into the country a privileged order of men. The idea of the gentleman 
BLipposes, that every office not at vvJllestahHshes a privileged ord«r.' The 
judges have their offiics for one term; the president, the' seaators and 
the members of^this house for differcBt terras, 'While these terms en., 
dure, there is^ privilege to h^'id the places, and 51© power exists t;o 
ren!0\je. Jt thjs be what the gentleman means By a privileged orderj 
^nd he agrees, that theprefidenr, the senators and the members of this 
houfe belong to privileged orders, I ilisii g,ve myself no trouble to deny, 
that the judges fall under the same deacriptiorj ; and I believe, that the 
gentleman wHl find k difficuit lo shew, that in any other manner they 
are privdtged, 1 did not^uppose, '^kat this argument was so much 
addressed to the understanding of gentlemen upon this door, as to the 
prejudices and passions of people out of doors. ' 

_ It was urged with sonie impression by the honorable member froi*- 
yirgmia, to whom I last referred, that 'he pofition that the office of a 
judge might be taken from him by law, was no:: a new do6trine. That 
It was estzibiishcd by the very ad now designed to be repealed, which 
was described 11^ glowing language to have iniiiaed a gapinp- wound os 
the conlutution, and to have 11 ained with Its blood th? pa^-es of 5ur 
Statute book. It shall be my task, sir, to close this gaping vi^ound, and 
to wash from the p?,ges of our Statute-book, the b*ood with which they 
were stamed. It will be an easy cask to diew to yau th? consu'tutiom 
Without a weund, and the Statute book v^ithouta -^ti^in. 

It is, sir, the 27th scc. of the bill of the lail session, which the ho- 
norable member considers as having inflided the ghaitiy wound on the 
constitfution, of which he has lb ktliiigiy fpolcen. That season abo, 
l.sbes the ancient circuit courts. But, ^Ir, have we contended, or has 
the gentleman, shewn,, that the conflitution prohibits the abohtion of a 
court vi-hen you do not ma crially ^ffednrin aay degree impair the in- 
dependence of a judge. A court is nothing moretnun a place where a 
judge isdirefted to discharge ceitain ciutic-s. There is no doubt, you 
may erea a new court and direa it to be holden by a judcre of the su 
preme or cf the distria ^ourls. And.u it ehoula aiurwlirda fee your 



L 



S* A 



|)teasiJ3rct6"'ab«ilis}-it!Tat court, it cannot be sai J, t^s.t you deftrny t|(fi . 
■offices of the jp.clgfs By whoin it was appointed that tbe coprt should be 
liolden. 

TbiKit was dire ft ed bf t^c origiins] judicial Isw, tfiat a circuit coort 
flotiH beholden at ^ork town, ia tbe diftrifSi of Penneylvaiiiii. 'ihia 
gcurt was afterwards abolished, but it vas nevtr imagined, that tlie office 
©f any judge was afTeded. Let n-.e suppose that a state is divided intp ' 
two didiicfs, and diftiicl courts tstahliided in ejirh, tut t%zt one judg? 
isappointed by iavs' to discliarge the judicial duties in both coiTts, Tixe 
arrangement '$ afterwards foiind ia(^onyeriient and one pf the cpnrts is a- 
iioh"shed. In this C3se will it be said, that the ofiice of the judge is de- 
f.royed, or liisincppendence aftscted ? The error, into whi^ h genflerojen 
have, fallen on this su^j- d, has arisen frpm their taking for granted, wh^X 
^hey have not attempted to prove,, and v/nat cannot be suppprted. l>.at 
the office of a judj^e and any cpurt in which he olficiates are the sair^c 
thing It is moil clear, that a judge may be authorized and directed to 
petforiTi duties in several courts h that the discharging hiin frpni the p^r7 
lorniance ©f duty in one of those courts cannot be deemed an^ infnnge- 
mmt of his office. The case of the la'e circuit courts as plainly illuss 
trates tbe argument, and as conclusive'y demonstrates its correftness, as 
any case which can be put. There were not nominally dsny judges pf the 
circuit court- I'he cou't "wasdiicded 'o be hoiden by the judg s cf the 
supreme and of the distri^ t courts. The judges of these two courts wee 
associated and du-ected to pes form certain duties, whea alTociated and 
in the performance of those duties, they w^re denominated the circuit 
fourt. Th s Courtis abojishcd ; the oniy consequen e is hat the judges 
of the supreme and diftrict courts are discharged Irom theperfprmiinceof 
the jomt duties which where previously imj-ceed tipon them. But is the 
ofsice of one judge of the supreme or of the dillrict courts infringed ?: 
Can any judge say, in consequence of the abolition of the circuit courts, 
I no longer hpid my office during good behavior ? On this ppmt it was 
further aliedged by the san.e honorable n^eniber, that the law of the laJt 
gellion inflcted another wound on the conhitution, by abolisuing the d s- 
trict coiiit of Kentucky and Tennessee. The gentleman was here de- 
ceived by the same iajlacy which mified him on the subject of the pirciiit 
courts. If he will give himself the trouble of caretuliy reviewing the 
provisions of the lav^, he will discern the sedulous attention ot the legisla-- 
tiire to avoid the infringement of the offices of those judges. X believe 
the gentleman wcRt so far as to charge us with appoir.ting by law those 
judges to new office?. 

The lawrefen-ed to. establishes ^ C'rcuit, com.pr^hending Kentucky, 
Tennessee and th^ district of Ohio. The duties of the court of this cir- 
cuit arcdiretted to be perfonred by a circuit judge and the two diftriA 
iudpes of Kentucky and Tennessee. Surely it is cpnipttent for the le- 
gislature tocreste a q9^rt, and to dlred that it shall be hoiden by any 
ef the exilting judges. Jf the legislature had dene with resj'ed to ail 
the district judges, what they have done v^nh rtspeci to tho;e of Ken- 
tuclcy and 'i'ennessee,! am quite certain, that the prei:ent ctjettKn would 
kavt. appeared entirely grwuiidiess. Had they diieded, that all the cir-? 



t 39 1 

#liit 6durt9-«lioul,d beheld b'j the fes^i^lve ainiriSi ysAge^ ■ -^ihih i^ 
eireuits,'. gdntJemerf would hay«c'e?iriy seen, that this, wns dslj.ail'impo- 
jsit'Tpn of a iijfw duty and not -in app;-*irttaient t;^ a nsw o„?ice. 

it will Be recoI!e£led, that ui^dcr the old establishment, the distrltl 
judges of Ke'ntueky aad Teuaessee vrere invested generally with the 
powers of thi^ circuit judges. The ancieat powers of those jddges arc 
Icarcely varied by the lace law, aadth>- amount of the ciiaage is. thatt'iej 
Urc directed to cKefcise those powers in a coiirt formerly called a diilricl, 
but now a circuit Coidrt, and -at other places than those to which they 
were formerly coahaed.. But the di-itrirl: judge nominsHy remains, hi* 
o'tice' both ijoiti'na'ly and gubllantiaily exifts, Sc he holds it riow as he did 
before, during good, behavioar, I will refer ger.tlenien to different pra- 
visions in the late law, which wi I shelw beyond denial, that the egislature 
carei'ully and pointedly avoicied the ail of abolishfag the o^'c^j of those 
j.ydges. ^ ^ , ^ _ ^ ... 

The 7th seiSi of the lav/ provides that the coitrt of the 6th circuit slia'l 
bdcdmtposed of a circuit judge ^' ai'l the judged of the d'lstriil courts of 
Ken.tiicicy.and Tenriessee.*' It wa;s ffr.erwards declared in the same sec-» 
tian, *' that thei-e shall be appointed in the 6th circuity a judge of the 
iTnited btstes to be called a cir'cuit jwdge, who, together with ths dlyirki 
judge of Tennessee and Kentucky shall ho'd the circiiit courts hereby di-' 
1-eiled to be hodden within the same circuit " Artd finally, in the same 
«ettioH it is provided> "that lohenev^r the office ^f distrld judge in tht dh- 
triits of Itentticky and Tennessee respectively hall bec97ne v icant such vacan-" 
cies shall respeitive'y be supplied by the appointnteiit of two additional 
judges ill the said circuit,' who, together with ciruit iudge hrft aforesaidp 
ehall compose the circuit court of the said circuit." When the express Iam- 
guage of the law aiHrnns the Existence of the office clad of the oiiicer, hy. 
providing for the contingency of the oScer ceasing to fill the o'iiice,wit!a 
what face can' gentlemen contend that the o^ce is abolished ? They who 
are not satisfied upon this point, I despair of convincing upon any other*. 

Upon the niain question, whethei" the judges hold their offices at ths 
will of the' legislature,' an argument of great weight and according to nsy' 
humible judgmenc, of irresistible force, still remains. 

The legislatve power of the government is not absolute but limited. 
If it be doubtful whether the legislature can do what the constitutiija 
does not explicitly autiiorize ; yet there can be no question, that they, 
cannot do what the constitution expressly prohibits- To maiataii!,' . 
therefore, the constitution the judges are a check upon tha legislature*. 
This docirine I know is denied, and it is therefore incumbent upon mc 
t© show that it is sound. 

! : It Avas once thought by gentlemen who now deny 'he principle, that 
the safety of the cidiea and of the states, rested upoti the power of tfec, 
Judges to declare an unconstitutional lav? void. How vasa is a paperrc" 
stricHtsin if it confers neither power nor right. Of what importanr-e is k 
to say. Congress ai-e prohibited from doing certain adis, if no lep-itimitfi 
authority e.-asts in the country to decide whether an aft done is a prohibit 
t.»d act ? Do gentlemen perceive the consequences which .would fiiUoiir 
from establishing the principle, that Congress have the estcluslvc rigit 
tw dtJcideupoatheirovrn pswer^^ ^kh priccipie. adwitieii, :ti«^.aay. 



t 40 J 

cbrist'tit '5ri rems-'n ? Does not the pow^r of the legislature becbme ati- 
•*olu':e ' nd on-'sipotent ? Can you talk to them of transgresang their 
power?; when no one has a I'ight to judge of those powers but themselves ? 
Thfy do what is notauthorizedj they do v.'hat-^G ihh;b'ted, nay' at every. 
iter they t'.aii.p e the constitution underfoot ; yet the'r' acts are lawful- 
iiTid binding. ai'd it iS Reason to resist them. How 'U, sir^ do tile dobtrines 
and professions of these gentlemen agreci They tell lis thty are frieTidij* 
to fhe existence of the Sates ; that Hey are the friends of federative, btit 
Ihe enem'es of a cona-dlidated general government, dndyet, air, to accom-V 
|)!lsh S paitr\r ofeject. they are \vii|ingto settle a printiple which, beiyonci 
aU dcubt. wou'd eve;i':ually plant a consolidated government, withuii-' 
limited power upon the riiins of the state irovernmentsi '■ 

^" Nothintr can be more absiJrd th^n to coiitet.d that there is a praftical 
|-estraint upon a poHtica! body who are answerable to none but them* 
selves for the violation of the tescraint, and who Can derive from the- 
very aft of violation, lindtnliible justification of their ccudu^t. 

if, Mr. Chairman, you snean to have a constitution, ybii truist (fiscd'^er; 
k power to which the aicknowiedged right is attached of pronouticing' 
the invalidity of the ails of the legislature which contravene t!ie ijistra- 

ment. ^ - ' • -■ i ■, ^ 

' Does thepo\ver reside in the states ? Has the legislature 6f a state a 
right to declare an att of congress void ? Thi* would be erring upoii 
the opposite extreme. It would be placing the general government at 
the feet of the state governments. It would be allowing one nieHiber 
of the union to concroul all the rest. It woiild inevitably lead to civil' 
dissention and a dissolution of the general government* Will ft be pre- 
tended thst the state coiirts have the exclusive right of deciding upoi> 
i"be validity of our laws? ^ 

I adm.it they have the righ^ to declare a;n a6c of congress v'oid; iBnt 
this right they fcnjoy in prat'tice, arid it ever essentially must exist subjedt 
ro the levision aind coniroul of the tourts of the United State:. If the 
Staie courts definitively poDjes,s the right of declaring the invalidity of 
the laws of this government, it would bring iis in subjedion to ttie states. 
The iudges of those courts being bound by the laws of the state, if a 
st?-te "declared an atl of congress unconstitutional* the Idw of the state 
^ould oblige i'& couns to deterrnine the law ir.valid. This principle 
■would alio destroy the uniforrnity of obligation upon all tne states- 
^^hich should attend every law of thia government, if a law vs'cre de- 
clared void iirone state, it would exempt the citizens of that state from 
iis optration, whiist cbedience was yielded to it in the other states. I 
go farther, and say, ii the states or state courts had a final power of 
annulling the al:S of this government, its miserable and precarious cx" 
istence would not be wortli t; e double of a momei.'t to preserve. 

■ It would endure but a short time, as a subjeft of derision, and wafting 
ifito an empty shadow wcu d quickly vanish frofli oitr sight. Lfet me 
now ask if the poAver to decide upon the validity of our laws residesi 
Avith the people. Gentlemen cannot deny this right to the sovereigni 
people. I admit they possess it. But if at the same time it dots not be- 
belongto the covr s of the U. States, where does it lead the people ? It 
leads them to the gallows. Let us suppose thai congress, foigctfalofthe 



[41 1 

■jnits of their authontr, pass an unconfticutional Inrr, They lay a 6:w 
re£l tax upon one state 8s impose none upon the others. The people of the 
state taxed, contest the validity of the law. They forcibly resist its 
execatioti. They are brought by the executive authority before thii 
courts upon charges of treason. The law is unconstitutional, the 
people; have done right, but the court are bound by the la\T and obliged 
to pronounce upon them the sentence which it infiifts. Deny to the 
courts of the Uniied States, the power of judging upon the constitu- 
tionality of oar laws, and it is vain to talk of its existing elsewhere. 
The infratlors of the laws are brought before these eoarta, & if the courts 
are implicitly bound, the invalid'ty of the laws can be no defence. There 
is. however, Mr. Chairman, still a stronger ground of argument upoit 
thi«suSject. I Ihall select one or two cases to illu (Irate it. Congress ara 
prohibited from paiTing a bill of attainder ; it is also declared in the con- 
stitution that • BO attainder of treason shall work corruption of bi&od 
or forfeiture, except during the life of the^ party attainted.' Let x^j 
suppose that congress pais a bill of attainder, or they enact that any one 
attainted of treason sliall forfeit to the use of the United States all the 
•itate which be held in any L^nds or tenements. 

The party attainted is seized and brought before a federal court, and 
an award of execution prayed againft him. He opens the conititutioii 
and points to this line * no biii of attainder or cx»post facto law shall 
be passed,' The attorney for the Uniwed States reads the bill of at- 
tainder. 

The court are bound to decide, but they have only the alternative o£ 
pronouncing the law or the constitiuion invalid. It is left to them only to 
say that the law vacates the constitution, or the constitution avoids th» 
law. So in the other case stated, the heir after the death of his ances- 
tor, brings his ejeftrneot in one of t!)e courts of the United States t(j 
recover his inheritance. The law by which it is contiscated is shey,-r» 
1 he constitution gave no power to pass sach a la>v. On the contrary it 
expressly denied it to government. 1 he tide of the heir is rested on the- 
constitution, the tide of the government on the law. The cifcct ofona 
destroys the eifecl of the other ; the court must determine which la ef- 
feftual. 

There are many other cases, Mr. Chairman, of a similar nature to 
which I mi^ht allude. Theie is rhe ca e of die privile-^e of Habeas Cor- 
pus which cannot be suspended but in times of rebellion or invasiou 
Suppose a law prohibiting the isscing of the vtrit ar. a moment of pro- 
found peace. If in such case the writ were demanded of a court, 
tould they say, it is true the legislature were reitrained from passing the- 
law, suspending the privilege of this writ, at such a time as that wiiich 
now exists, but their mighty power has broken the bonds of the coa- 
stitution. and fettered the authority of the court. I am not. Sir, dis-. 
posed to vaunt, but standing on ihis ground I throw the gauntlet tu 
any cham)ion upon the other sidr'. I call upon them to maintain, that 
sn a coUirion between a law hikI the constjtaci.)ii, i-he judges are bound 
to support the law, and annul th« conlVuution. Can tiie gentlemeu 
relieve thenase'ves from this dilemma ? Wui they say, tho' a judge baa 
ao power to prorwua^* a law void, he has a pcwci" to declare ths cjxj. 
vStitutiuu invalid. F 



I 4S- J ^ 

The dodr^ne fbr which 1 am contencling is vpz ouiy c'.?a.rlY ini-era. 
blfc from the piain language of the C' RSLilution, but bylaw lias been e:t- 
{ lessly declari;d and establ, [lied in practice since the exidence of the 
g-overnnuTit, 

The 2d seclipn ot the 3d article of the ccnstiution expressly extends 
t'le jadiciai power U> all cases arising urdtr the constitution, the laws, 
5:c. The provis'on in the 2d cianse of the 6th 'article leaves nothing to 
doubr. '« l^hic. coiistaution and t/je ia-vjs of the United Stales lohu-b 
'shall be made in pursuance thereof- ^c, shall be ihe supreme law of the 
iard;- The consiitution k absolutely the supreme law. Not lo of the 
ads of the legiakture - ,Such only are the law of the land as arc made 
In pursuance of the cowit'nvJ} on. 

I beg the indulg-enrt of the committee one moment, "d.ile .1 read the 
/Mllowin^^^ provision from tlie 25t!i seft. of the judicial atl of the year 
'I7S9 ; *' A final judgment or decree in anv siut in the highest court of 
law or equity of a ftate in which a decision in the suit coidd be had^ 
•where is drapn in queslloji the ■val'idily of a treaty or statute of or anau^ 
ihor'ity exercised under the United States, ?.vA the decision is against their 
maUJity, "(Jfc. maybe re. examined and rovcr-^edor qljirmcd'm the lupreme 
court of the United States upon a writ of error."— Thus, as early as tiie 
year 1 f 89, among the firll adts of the government, the legislature explicit- 
ly reccgnized the right of a state court to decUre a treaty, a statute, and 
iin authority exercisjd under the United States void, subject, to the re- 
vir-ion of the sv.preme court of the United States ; and it has expressly 
given tlie Rnal power to the supreme court to affirm a judgment which 
is agciinst the validity either ox^a treaty, statute or ari authority of tht; 

jT^ovemm'^nt. 
«^ 

" I hnmbly trust, Mr, Chairman, that I have given abundsnt proofs fron::^ 
the nature of oiir govei'nrnent,from the languaafe of the consiitution, ancJ 
from legislative acknowledgement, that the judges of our courts have the 
power to ;udr(f; a.ud dete.nii.ie upon the constitut onah'ty of our law. 
' Ltt me CO '.V suppose that in our frarne of government the jydges are 
a check upov the iegiflature; that the constitution is deposited in their 
t''epjng„ V/ill you say afterwards that their existence depends upon the 
Ifr^islature ?'l'hat the bod/ whom they are to check has the powe^ to de- 
stroy thevi i' WiiJ you say that the constitution may be taken out; of 
thefr hands, Ly a pov/er the rnoil to be distrustedj because the only power, 
•which could violate it wir'i impunity? Can any thing be rnore absurd 
than to acni;t, that the judges are a check upon the legislature, and yet 
to contend that they e;;ift at' the will of the legislature ? A check must 
necessarily imply a power commensurate to its end. The political body 
idesigned to check another must he independeiitof it, otherwise there c,3« 
be no check. What check can there be when the p'wcj; desi^ne^tobe^ 
checked can annihilate the body y/hich is to restrain it ? 

I go farther, Mr. Chairman, and take a stronger ground. I say in 
?he nature of things the dependence of the judges upon the legislature, 
arid their, right to declare the afts of the legistature void, are repugnant 
and cannot exist together. The doi?trine, sir, suppose^, two rights — 
first the right of the legislature to destroy the office of the judge,and the 
fight of the judge to vacate the att of the legish'.ture. You haVe «ii"ighi; 



C 43 3 

to a'oQiTsli hj a law, the offices of the judges of the circuit courts.— T-hey 
have a ris;ht to declare your law void. It unavoidable follows in the ex«r 
erciseof these rights, either that you destroy their rights, or that they 
destroy yours. This doftrine is not an harmless absurdity, it is aniosl^ 
dangerous heresy. .It is a doftrine which cannot be practised without; 
producing iiot discord only, but hloodshed. If you pass the bill, upon 
your table the judges have a constitudcnal right to declare it void. I 
hope hey will have courage to exercila that right ; and if, sir, I aaical'", 
led upon to take my side, standing acquitted in my conscience and bc'p 
fore my God, of al,l raouves but the fjupport of the constitutJon of my 
country, I shall net tremble at the cons'rquences. 

The co'.istitution may have its enemies, hilt I know ihat it has also itg 
friends. I beg gentl, men tc pause t)efore they take this rash step. There 
are piaiay, very many who believe, if you strike this blow, you infliit 3. 
mortal w'ound on the constitution. There are many now willing to spill 
their blood to. defend that constitiuion. Are gentlemen disposed to risk 
the consequences ? Sir, I mean no threatg — I have no expedatioB oF 
aj palling the stout hearts of my adygrsaries ; but if gentlemen are re- 
gardless of themselves, let them consider their wives and children, theiv 
neighboiu-s and their fnend"?. Will they r.sk civil disseation ; will they 
hazard the welfare, will they jeopardize the peace of the country, to savs^ 
a paltiy sum of money, less than thirty thousand dcllars* 

Mr. Gnairmap, I am confident that the friends of this measure are not 
apprised of thp nature of its operatioHj nor sensible of the minchievouis 
f onsequcnces which are likely to attend it„ Sir, the morals of your 
people, the peace of the country, the stability of the governmex'^t, r,csf; 
upon thetnaintenance of the independence of the judiciaryo It is not of 
half the impprtance in England, that the judges should be independent of 
the crown, as it is with us, that they should be independent of the legis* 
lature. Am I asked, would you render the judges superior to the legis^ 
iature? .1 answer, no-, but co-ordinate.; Would you render them inde.,^ 
pendent of the legislature ? I answer, yes, independent of every power 
on earth, whjlg they behave themselves well. The esscntii^l inteiestsi, 
the permanent welfare of society require this independence, Not( sir, 
on account of. the judge 5 that is a small consideration, but oa account 
of thoje between whom he is to decide. You calculate on the weaknesse.^ 
of human nature;, and you suffer the judge to be dependant on no one, 
iest he should be partial to those on whom he depends. Jullice does 
not exist vvhere partiality prevails. A dependant judge cannot be iau 
partial. Independence is therefore essential to the purity of your judi^ 
^ial tribunals. " 

Let it be remembered, that no power is so sensibly felt by society, as 
that of the judiciary. The Hfc and property of every ma.n, is liable to 
be in the hands of the judges. Is it not our great intereil, to place oui' 
judges upon such high ground, that no fear tan intirai.datej no hope can 
Seduce them? The present measures humbles them in the dull, it pros^ 
traies them at the feet of faftion, it renders them the tools of every 
dominant party. It is this effed which I deprecate, it is this conse- 
quence which I deeply deplore. What does reason, what does argumeuf 
a'vad, when party spirit presides ? Subjedycur bench to the intiuence 
ef this spirit, and justice bids a fiual adieu to your triijuuali. Wc are 



L 44 3 

?>tiked, sif, if the judges ire to be inuependent of thff people ? 1*!ie qt?e»» 
tion presents a ialse and deluGvc view. We are all the ptople. We are, 
JMid as long as wc enjoy our freedonij we (ball be divided into parcies. 
The true queftion is, shall the judici:;ry be permanent, or fiuftuate with 
the tide of public opinion ? I hcg, I implore gentleraen, to confidcr the 
n-pgnitude and value of the principle which they ?.re about to annihilate* 
If your judges are independent of political changes, they may have their 
preferences, but they ^vi!l not er.ter into the spirit of party. But let 
their exigence depend upon the support of the power of a certaiii set of 
jricn, and they cannot be impartial. Judice will be trodden under foot* 
Your courts will lose all public confidence and respeft. 

The judges will be supported by their partizart^, who i<i their tura 
will expeit impunity for the wrongs and vioicnce they commit. The 
spirit of party v/ill be inflamed to madness ; rnd the moment is not far 
eff, when this fair country ib to be dcBSolated by civil war. 

Do not say, that you render the jadg:e3 dependent ohly on the pe pie. 
— -you make them dependent on your President. 'lliis is his measure. 
The same tide of public opinion which changes a Presidenf, will change 
the majorities in the branches of the legislature. The legislature will 
be the instrument of his ambition, and he will have the courts as the 
jnllruments of his vengeance. Reuses the legislature to "remove the 
judges, that he may appoint creatures of his own* In effeft, the pow- 
ers of the government will be concentrated in the hands of one man, 
V/ho will dare to ad\ with more boldness, because be will be sheltered 
from responsibility. The independence of the judiciary was the felicity 
of cur constitution* It was this principle Avhich was to curb the fury 
of party Upon sudden changes. The Grfl moments of power, gained by 
a Aruggle, are the mort vindictive and intemperate, Raifed above the 
iiorm, it was the judges who were to control the f:ery zeal, and to quell 
the fierce pafiions of a viclorius fadtion. 

We a:e flanging on the brink of that revolutionaty torrent, whicli 
deluged in blood one of the fdreft countries of Europe. 

France had her national assembly, more numei'ous and equally po- 
pular with our own. She had her tribunals of juftice, and her juries, 
But the legislature and her courts were but the inftruments of her de- 
itruftion. Adts of prescription and sentences of banishment and death 
were passed in the cabinet of a tyrant, Proilrate your judges at the 
feet of party, and you break down the mounds which defend you from 
this torrent. I am done. 1 should have thanked my God for greater 
power TO resist a measure so deftructive to the peace and happiness of 
the country. My feeble efforts can avail nothing. But itvvas ray duty 
to make them. The meditated blow is mortal, and from the moment 
it is ilruck, we may bid a final adieu to the confticution. 

The fvllczv'mg corredlons toere not recehsd until %be first half sheet had 

been printed^ 
Es-RAXA— /fJ/a^tf 1. line S. After the qmords " before us." / bad 
ex^eBed he would have adopted a different line of conduct 
2. The t'wo last paragraphs fa be united^ 

4. 3 5 f/6 line, for ' gratification* read g ratiScations. 

5. Ath line from the bottom, for ' or' read nor. 
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